Terms and Conditions
DEFINITIONS AND INTERPRETATION
In these Terms and Conditions the following expressions will have the following meanings unless inconsistent with the context:
“Account” means the information and credentials used by the Buyer to create an account on the Website to enable an order to be placed;
“Buyer” means the sole trader, firm or company placing an order for Goods with us via the Website;
“Contract” means any contract between us and the Buyer for the sale and purchase of the Goods, formed in accordance with clause 2 and which includes these Terms and Conditions;
“Goods” means any Goods which we supply to the Buyer (including any of them or any part of them) under a Contract;
“Terms and Conditions” means the standard terms and conditions of sale set out in this document together with any special terms agreed in writing between us and the Buyer and attached to these terms and conditions;
“Website” means this website that the Buyer is currently using (www.thorntreesamenity.co.uk) and any sub-domains of this site unless expressly excluded by their own terms; and
“We/Us/Our” means Thorntrees Amenity Limited, a company registered in Scotland under company number SC235908, of Tweed Horizons Business Centre, Newtown St Boswells, Melrose, TD6 0SG
The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation. Words imparting the singular shall include the plural and vice-versa. “Writing” and “written” includes emails.
FORMATION AND INCORPORATION
2.1 These Terms and Conditions apply between the Buyer and us, the owners of this Website. Please read them carefully. The Buyer agrees to comply with and be bound by these Terms and Conditions upon their first use of the Website. If the Buyer does not agree to be bound by these Terms and Conditions, they should stop using the Website immediately.
2.2 This Website is intended for business to business sales only and is not for consumer use. If the Buyer is a consumer, the Buyer must contact us prior to placing any order. Alternative Terms and Conditions apply to consumer sales.
2.3 Subject to any variation under clause 14.1, the Contract will be upon these Terms and Conditions, to the exclusion of all other terms and conditions and all previous oral or written representations including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order or similar document, whether or not such document is referred to in the contract.
2.4 By placing an order through our Website, the Buyer warrants that (a) they are legally capable of entering into binding contracts; (b) they are a business; and (c) they are at least 18 years old.
2.5 The Buyer can place an order with us at any time via our Website. The Website will guide the Buyer through the ordering process. Orders cannot be placed without the Buyer first setting up an Account (as detailed in clause 4 below) and no pricing information will be made available until this process is complete.
2.6 Before submitting any order, the Buyer will be given the opportunity to review and amend it. The Buyer must ensure that they have checked the order carefully before submitting it. The order for the purchase of the Goods constitutes a contractual offer that we may, at our sole discretion, accept. All orders are subject to acceptance by us and we will confirm such acceptance to the Buyer by sending an email that confirms that the order has been successfully processed (“the Order Confirmation”). The Contract will only be formed when we send the Buyer this Order Confirmation. The Order Confirmation will contain full details of the order, the price including taxes and any other additional charges, and the estimated date for delivery.
The description of the Goods will be as set out on our Website. All samples, drawings, descriptive matter, specifications and advertising issued by us, and any descriptions or illustrations contained on our Website or in our catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods represented by or described in them. No descriptions of the Goods set out on our Website shall be binding on us and are intended as a guide only. They will not form part of the Contract and this is not a sale by sample.
4.1 In order to place an order via the Website, the Buyer is required to create an Account, which will contain certain details about their business, including the business name, address, contact details and VAT number. By continuing to use this Website, the Buyer represents and warrants that all information submitted by them is accurate and truthful, they have permission to submit payment information where permission may be required, and they will keep their Account details accurate and up-to-date.
4.2 Sharing of Accounts is not permitted unless we expressly authorise it in writing. The Buyer is required to keep all Account details confidential and must not reveal their username and password to anyone.
4.3 When using our Website, the Buyer must not submit content that is unlawful or otherwise objectionable. This includes, but is not limited to, content that is abusive, vulgar, obscene, threatening, harassing, defamatory, ageist, sexist or racist. Any failure to do so could result in the suspension and/or deletion of the Account.
PRICE AND PAYMENT
5.1 The price for the Goods will be at the price advertised on the Website current at the date of the order, except in the cases of obvious error, or such other price as may be agreed in writing by us. We are under no obligation to provide the Goods to the Buyer at the incorrect (lower) price, even after we have sent the Buyer an Order Confirmation, if the price error is obvious and unmistakable and could have reasonably been recognised by the Buyer as a mis-pricing. In the unlikely event that we have shown incorrect pricing information, we will contact the Buyer in writing before proceeding with the order to inform the Buyer of the mistake and to ask how they wish to proceed. We will give the Buyer the option to purchase the Goods at the correct price or to cancel the order (or the affected part thereof). We will not proceed with processing the order until we receive a response. If we do not receive a response from the Buyer within 48 hours, we will treat the order as cancelled and will notify the Buyer of this in writing.
5.2 All prices advertised on the Website are exclusive of any costs of packaging and carriage, VAT and any other applicable sales tax or duty. These will be provided to the Buyer, together with options for delivery, as part of the order process. If the VAT rate changes between the Buyer’s order being placed and us taking payment, the amount of VAT payable will be automatically adjusted when taking payment.
5.3 We reserve the right to change prices and to add, alter or remove special offers from time to time and as necessary, however, this will not affect orders already confirmed by us.
5.4 The Buyer is required to pay for the total order value in full at the time of placing the order, by credit or debit card via Sage Pay. Payments will go through Sage Pay’s website. No credit or debit card information is provided to us and completion of the transaction will be subject to you agreeing to Sage Pay’s terms and conditions. A separate contractual relationship is created between you and Sage Pay.
5.5 At our sole discretion, we may offer to invoice the Buyer for the Goods on or at any time after the order is placed, in which case payment is due within 30 days from the date of such invoice, or upon termination of the Contract, whichever occurs first. However, we reserve the right, for any reason whatsoever, to suspend any existing invoice account and require payment to be made up front, before the provision of any Goods.
5.6 All payments to be made by the Buyer under the Contract will be made in full without any set-off, withholding, restriction or condition and without any deduction for or on account of any counterclaim.
5.7 We may at any time suspend the provision of the Goods if the Buyer is late in making any payment due to us.
5.8 If any sum payable under the Contract is not paid when due then, without prejudice to any other rights that we may have under the Contract, that sum will bear interest from the due date until payment is made in full, both before and after any judgment, at 8% per annum over Barclays Bank plc base rate in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and we will be entitled to suspend deliveries of the Goods until the outstanding amount has been received.
6.1 The Goods shall be delivered to the location specified in the order.
6.2 Delivery of the Goods must be accepted at any time of day. If the Buyer fails to take delivery, or provide any necessary documents, the Goods will be deemed to have been delivered and we, without prejudice to our other rights, may at our option:
6.2.1 store or arrange for storage of the Goods until actual delivery or sale and charge the Buyer for all related costs and expenses (including, without limitation, storage and insurance); and/or
6.2.2 use reasonable endeavours to rearrange delivery but, if unable to rearrange delivery, following a period of 3 months from the attempted delivery date and following written notice to the Buyer, sell any of the Goods at the best price reasonably obtainable in the circumstances and charge the Buyer for any shortfall below the price under the Contract or account to the Buyer for any excess achieved over the price under the Contract, in both cases having taken into account any charges related to the sale.
6.3 We will use reasonable endeavours to deliver or perform each of the Buyer’s orders for the Goods within the time agreed when the Buyer places an order and, if no time is agreed, then within a reasonable time, but the time of delivery will not be of the essence. Any delay in delivery will not entitle the Buyer to cancel the Contract unless and until the Buyer has given 30 days’ written notice to us requiring the delivery to be made and we have not fulfilled the delivery within that period. If the Buyer cancels the order in accordance with this clause 6.3 then:
6.3.1 We will refund to the Buyer any sums which the Buyer has paid to us in respect of that order or part of the order which has been cancelled;
6.3.2 the Buyer will be under no liability to make any further payments under clause 5 in respect of that order or part of the order which has been cancelled; and
6.3.3 We will have no other liability to the Buyer in respect of our delay or failure to deliver the Goods.
7.1 All Goods will remain our property until the price of such Goods has been paid in full (in cash or cleared funds).
7.2 Risk in the Goods will pass to the Buyer from the date of delivery (as set out in clause 6.2 above).
7.3 The Buyer’s right to possession will terminate immediately upon the occurrence of an event which would allow us to terminate the Contract under clause 12.3.
7.4 Where title in the Goods remains with us, the Buyer grants us, our agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
8.1 We will, free of charge, within a period of 1 month from the date of delivery of Goods which are proved to our reasonable satisfaction to be damaged or defective due to defects in material, workmanship or design (other than a design made, furnished or specified by the Buyer), replace such Goods. This obligation will not apply where:
8.1.1 any instructions as to the use or storage of the Goods have not been complied with in all respects; or
8.1.2 the Buyer has failed to notify us of any defect or suspected defect within 48 hours of delivery where the defect should be apparent on reasonable inspection. Where inspection is not possible on delivery, the delivery note must be marked “unchecked”.
8.2 Provided the Buyer adheres to its obligations as detailed in clause 8.1 above, we will refund to the Buyer the cost of carriage on the return of any such defective or damaged Goods, and will deliver any repaired or replacement Goods to the Buyer at our own expense.
8.3 Any Goods which have been replaced will belong to us until paid for in full as detailed in clause 7. Any repaired or replacement Goods will be liable to repair or replacement under the terms specified in clause 8.1.
8.4 These terms and conditions apply to business customers only. Therefore, we do not accept the return of any Goods which are not damaged or defective as detailed in clause 8.1 or where the Buyer simply changes their mind, without our prior agreement.
9.1 We do not exclude our liability (if any) to the Buyer for any matter which it would be illegal for us to exclude (or to attempt to exclude) our liability.
9.2 Except as provided in clauses 8.1 to 8.3 and 9.1, we will be under no liability to the Buyer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any indirect or consequential loss (both of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused arising out of or in connection with any Contract including the provision of any Goods.
9.3 Except as set out in clauses 6.3 and 8.1 to 8.3 and 9.1 to 9.2, we hereby exclude to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Contract) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Buyer.
9.4 The Buyer agrees to indemnify, keep indemnified and hold us harmless from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments which we incur or suffer as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance by the Buyer of the terms of the Contract.
We will not be liable to the Buyer for any failure or delay or for the consequences of any failure or delay in performance of the Contract, if it is due to any event beyond our reasonable control including, without limitation, acts of God, war, industrial disputes, protests, fire, flood, explosion, an act of terrorism and national emergencies, and we will be entitled to a reasonable extension of time for performing such obligations.
11.1 All content included on the Website, unless uploaded by users of the Website, including, but not limited to, text, graphics, logos, icons, sound and video clips, data, page layout, underlying code and software is our property. By using the Website, the Buyer acknowledges that such content is protected by applicable intellectual property laws.
11.2 The Buyer will not systematically copy content from the Website for any reason whatsoever unless given our express written permission to do so.
11.3 All intellectual property rights in the Goods belong to us or our licensors absolutely. All intellectual property rights created, developed or discovered by us (whether alone or with any other person including the Buyer) in the provision of the Goods shall belong to us absolutely.
11.4 The Buyer may not make or distribute the Goods or copies of them;
11.4.1 without written consent from us to sell, sub-licence or transfer the Goods to any third party;
11.4.2 make any public presentation using the Goods or any printed copy of the same
without our prior written consent.
11.5 The Buyer shall notify us immediately if the Buyer becomes aware of any claim made against the Buyer that normal use or possession of the Goods infringes or is alleged to infringe the intellectual property rights of any third party.
11.6 If at any time in connection with any Contract the Buyer (whether alone or with any other person) creates any intellectual property related to the subject matter of the Contract, the Buyer shall treat such intellectual property and all information relating to it as confidential to us and shall promptly disclose to us full details of such work. The property, including all intellectual property rights in such work, shall vest in us absolutely and the Buyer agrees to assign the same to us and the Buyer hereby irrevocably and unconditionally waives in favour of us any and all moral rights conferred on the Buyer with relation to such intellectual property rights.
11.7 Notwithstanding any prior termination of a Contract, at our request, the Buyer shall do all things necessary or desirable to enable us or our nominee to confer absolute title to and ownership of and to obtain the benefit of the rights including the intellectual property referred to in clause 11.6 and to secure patent or other appropriate forms of protection for it throughout the world.
CANCELLATION AND TERMINATION
12.1 Once a Contract has come into existence between us and the Buyer, the Buyer shall no longer be entitled to cancel the order.
12.2 We may cancel the order for any reason prior to delivery. If the order is cancelled by us for any reason, any payments made by the Buyer will be refunded in full.
12.3 Either party may, by written notice, terminate the Contract immediately if the other party is in material breach of the Contract or enters into insolvency, bankruptcy, any arrangement with its creditors or any other arrangement or situation which has a like effect. Failure to pay any sums due in accordance with clause 5 is a material breach of the terms of the Contract.
12.4 The termination of the Contract howsoever arising is without prejudice to the rights, duties and liabilities that either party accrued prior to termination. The conditions which expressly or impliedly have effect after termination will continue to be in force notwithstanding termination.
WEBSITE AND COMMUNICATIONS
13.1 Applicable laws require that some of the information or communications we send should be in writing. When using our Website, the Buyer accepts that communication with us will be mainly electronic. We will contact the Buyer by email or will provide the Buyer with information by posting notices on our Website. For contractual purposes, the Buyer hereby agrees to this electronic means of communication and acknowledges that all contracts, notices, information and other communications that we provide electronically comply with any legal requirements that such communication be in writing.
13.2 Notices shall be deemed to have been duly received and properly served immediately when posted on our Website, 24 hours after an email is sent, or three working days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed to the address provided, stamped and placed in the post and in the case of an email, that such email was sent to the specified email address of the addressee.
13.3 All information that we may collect will be collected, used and held in accordance with the provisions of the Data Protection Act 1998.
13.4 In certain circumstances (for example if the Buyer wishes to make a purchase on credit), we may pass the Buyer’s information on to credit reference agencies. These agencies are also bound by the Data Protection Act 1998 and should use and hold the Buyer’s information accordingly. We will not pass on any information to any other third parties without first obtaining the Buyer’s express permission.
13.5 This Website may contain links to other sites. Unless expressly stated, these sites are not under our control or that of our affiliates. We assume no responsibility for the content of such websites and disclaim liability for any and all forms of loss or damage arising out of the use of them. The inclusion of a link to another site on this Website does not imply our endorsement of the sites themselves or of those in control of them.
13.6 The Website is provided “as is” and on an “as available” basis. We give no warranty that the Website will be free of defects and/or faults, that it will meet the Buyer’s requirements, that it will be compatible with all systems, or that it will be secure. We accept no liability for any disruption or non-availability of the Website. Whilst every reasonable endeavour has been made to ensure that all information provided on this Website is accurate and up to date, we make no warranty or representation that this is the case. Whilst we use reasonable endeavours to ensure that the Website is secure and free of errors, viruses and other malware, the Buyer is advised to take responsibility for their own internet security.
13.7 We reserve the right to alter, suspend or discontinue any part (or the whole of) the Website. These Terms and Conditions shall continue to apply to any modified version of the Website unless it is expressly stated otherwise.
14.1 Save as set out in the Contract, these Terms and Conditions may only be varied or amended in writing and signed by a director of Thorntrees Amenity Limited.
14.2 The Contract is personal to the Buyer, who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Contract without our prior written consent.
14.3 The Contract contains all the terms which we and the Buyer have agreed in relation to the Goods and supersedes any prior written or oral agreements, representations or understandings between the parties relating to such Goods. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on our behalf which is not set out in the Contract. Nothing in this clause 14.3 will exclude any liability which one party would otherwise have to the other party in respect of any statements made fraudulently.
14.4 The parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
14.5 For the avoidance of doubt should there be any conflict between the terms and conditions of sale set out in this document and any special terms attached to them, then the special terms shall prevail.
14.6 If the rights under these Terms and Conditions are not exercised or enforced following a breach of contract by either party, this does not mean that either party has waived their right to do so at a later date.
14.7 Any part of these Terms and Conditions found to be unlawful, invalid or otherwise unenforceable would be severed from the Contract. The validity and enforceability of the remaining parts of the Contract shall not be affected.
14.8 The formation, existence, construction, performance, validity and all aspects whatsoever of the Contract or of any term of these Terms and Conditions and the Contract will be governed by English law. The English courts will have exclusive jurisdiction to settle any dispute which may arise out of, or in connection with the Contract. The parties agree to submit to that jurisdiction.