1.1 The definitions and rules of interpretation in this condition apply in these conditions.
Buyer: the person, firm or company who purchases the Goods from the Company.
Company: Overmantels London Ltd, Co registration No. 14959292, registered office: Suite 3, Sobus Hub, 196 Freston Road, London, England, W10 6TT
Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these conditions. For avoidance of doubt this includes all invoices for Goods issued by the Company to the Buyer (or their agent)
Delivery Point: the place where delivery of the Goods is to take place under condition 5.
Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.2 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document), and these conditions supersede any prior promises, representations, undertakings or implications.
2.2 These conditions apply to all the Company’s sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by an authorised representative of the Company. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.3 Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions.
2.4 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer. Any quotation in whatever form given to the buyer is given subject to these conditions and does not constitute an offer to sell.
2.5 By placing an order, the Buyer warrants that: (a) it is legally capable of entering into binding contracts; and (b) it at least 18 years old;
2.6 The Company has the right to revise and amend these terms and conditions from time to time to reflect changes in market conditions affecting our business, technology, payment methods, relevant laws and regulatory requirements and/or in our system’s capabilities. You will be subject to the policies and terms in force at the time that you order the Goods from us, unless any change to those policies or these terms is required by law or government or regulatory authority (in which case, it will apply to orders you have previously placed that we have not yet fulfilled).
3.1 The quantity and description of the Goods shall be as set out in the Company’s quotation, invoice or acknowledgement of order.
3.2 All drawings, samples, photographs, photoshops, illustrations, specifications, performance data, dimensions, weights, models, product descriptions, advertising issued by the Company, and any illustrations and descriptions contained in the Company’s catalogues, brochures, emails or on our website, whether contained in the contract or made by way of representation, have been provided by the Company for the sole purpose of giving an approximate idea of the Goods described in them and/or are representative of the finished product. They are issued or published in the belief that they are as accurate as reasonably possible but shall not be taken to be representations made by the Company, and are not warranted to be accurate.
3.3 All Goods are manufactured within the standard industry measurement tolerances – being 5mm on woodwork and 2mm on glass.
3.4 Where a photoshop or other digitally-created representation of the goods has been provided by Company to give the Buyer a mock-up visualisation of the Goods in proposed situation, it provides merely an artists impression of the end look and cannot be relied on as exact representation of the final result. Note colours will be affected by your monitor and by your printer and therefore may not be 100% accurate to the finished product.
3.5 Your Order is unique to you and will be supplied in accordance with the instructions and specification as detailed in our Order Confirmation. Every effort will be made to match all colours and finishes. Notwithstanding this all Goods are purchased and supplied, on the understanding that there may be slight colour, shade and grain variations, particularly with natural products such as wood and hand applied gilt. Colours may also change with age and exposure to sun and other climatic conditions.
4. MATERIALS & SAMPLES
4.1 Many of our Goods are gilded by hand and will naturally vary slightly. Such variation in colour and waxing are part of the attraction of handmade application over machine-made alternatives.
4.2 Occasionally we may supply Goods with minor differences in specification due to circumstances beyond our reasonable control. Should this be the case any differences will result in the Goods being of an equal or improved standard, and it will not affect your rights under the law, and the quality coding and guarantee will continue to apply.
4.3 Finish samples (gilt or other finish) and specialist glass samples can be provided on request –a cost may be charged for this.
4.4 Where a finish is not selected at the time of order, the decision period on the finish may extend the lead time.
4.5 All sample approvals must be in writing (this includes e-mail).
5. DELIVERY & INSTALLATION
5.1 It is the Buyer’s responsibility to check access prior to ordering. The Company may conduct an installation survey prior to ordering at the Buyer’s request and cost. This is recommended for unusual spaces or where delivery might be difficult due to location, access, unusual hanging situations or the dimensions of the Goods. Should any modifications (e.g. removal of windows or doors) be needed to allow access, it is the Buyer’s responsibility to arrange this at its own cost and risk.
5.2 In respect of export orders, the Company will require payment in full prior to release for shipping. Unless otherwise agreed, the Buyer shall arrange for all shipping to delivery addresses outside mainland UK and the Goods shall be deemed delivered when collected from the Company’s premises. The Goods may be inspected prior to packing for export by prior arrangement.
5.3 Any dates specified by the Company for delivery of the Goods are intended to be an estimate only and so cannot be guaranteed; time for delivery shall not be made of the essence by notice. If no dates are specified, delivery shall be within a reasonable time. Whilst we will make every effort to deliver within the estimated delivery time, occasionally deliveries may be affected by factors beyond our control.
5.4 Subject to the other provisions of these conditions the Company shall not be liable for any 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 similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 90 days and the delay has not been influenced by the Buyer.
5.5 We will deliver to the delivery address stated in the Order and confirmed by us in the Order Confirmation. Should you wish to change the delivery address from the address given in the Order and confirmed by us in the Order Confirmation then you must have notified us and have obtained our agreement in writing to any change in delivery address prior to any delivery taking place.
5.6 If you ask us to deliver the Order in instalments, we may charge you extra delivery costs.
5.7 We will contact you where applicable to arrange delivery. We will offer you an initial delivery slot but if this is not acceptable we will offer you a maximum of two reasonable alternatives. We reserve the right to charge a storage charge in the event you do not reasonably accept delivery. If you are not going to accept delivery yourself, you must notify us in advance of the nominated adult who will take delivery.
5.8 If you fail to accept the reasonable delivery dates offered to you, then, except where this failure is caused by our failure to comply with these terms and conditions or by an event beyond our control, or when your have stipulated a “not before date” on your order, we will store Goods for a period up to 3 weeks without charge, thereafter we will store the Goods until delivery takes place and may charge you a reasonable sum currently £25 per week to cover expenses. Any such charges must be cleared before delivery will take place.
5.9 You must ensure that you or a nominated adult with (if we so request in order to prevent fraudulent activity) appropriate ID (driving licence or passport) are available on the day and the point of delivery to sign for the Goods. You must also ensure that on the day of delivery access to your preferred location of the Goods is clear and free of any obstruction.
5.10 If you or a nominated adult are not available or the access is not clear and free of any obstruction, then we will not deliver your Goods. This will result in a re-delivery of your Goods and a further delivery charge will be levied.
5.11 We do not accept any responsibility for damage to your property during delivery other than damage due to our negligence when our liability is limited to the repair of that damage with no element of betterment.
5.12 All risk in the Goods shall pass to the Buyer on delivery.
6. INITIAL DEFECTS
6.1 Buyers will be asked to sign a delivery note acknowledging that the Goods have been received complete and in good condition. If the Goods are damaged or are incomplete when delivered, please do not sign the form.
6.2 If a delivery note is not given at the time of delivery for any reason, the Buyer shall be deemed to have accepted the Goods as complete and in good condition if the Company (and not the delivery agent who may or may not work for the Company) does not hear from the Buyer in writing within two days of delivery.
6.3 The Buyer shall have no claim in respect of i) any breach of the warranty in Clause 9 which should have been apparent on a reasonable visual examination of the goods, or ii) in respect of the fact that the Goods delivered are of the wrong description, unless:
6.3.1 the receipt for the Goods is qualified by a remark to that effect, and
6.3.2 the claim is made upon the Company in writing within two days of delivery in the case of damage or three days of delivery in the case of shortages.
6.4 In any event the Buyer shall be treated as having accepted any consignment of the Goods if it retains them for longer than one month after their delivery
7.1 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
7.1.1 the Goods; and
7.1.2 all other sums which are or which become due to the Company from the Buyer on any account.
7.2 Until such time as the full price of all such Goods has been paid:
7.2.1 they shall be held by the Buyer in a fiduciary capacity and stored by the Buyer at its premises in such a manner that they are clearly identifiable as the goods of the Company and shall be kept separate from any other goods whether or not supplied by the Company;
7.2.2 they shall be handed over to the Company on demand and the Company shall be entitled to retake possession of them without prejudice to any of its rights against the Buyer and the Company is hereby granted a licence to enter into the Buyer’s premises for the purpose of recovering the goods.
7.3 If the Buyer shall allow the goods to become incorporated into or be used in the manufacture of other goods before the full price of the goods is paid to the Company the property in the whole of those new goods shall be that of the Company who shall be entitled to take possession of the new goods and the Company is hereby granted a licence to enter into the Buyer’s premises for the purpose of recovering the new goods. The Company shall be entitled to sell the new goods and shall retain from the proceeds of sale thereof a sum equal to the amount outstanding to it in respect of the price of the goods and the fair cost of recovery and shall pay the balance of the sale proceeds to the Buyer.
8. PRICE & PAYMENT
8.1 The price for the Goods shall be as specified in the quotation or invoice and, unless specified otherwise, is inclusive of any VAT, delivery and installation charges, if applicable. The invoice may be modified to include any additional charges and expenses added by agreement with the Buyer after the original date of Invoice.
8.2 Payment in full at the time of order is required for most standard mirrors. Where it is agreed to proceed by way of deposit, 50% of the total contract amount is required to be received for the order to commence. Save that where the contract includes the purchase of a television, specialist bracket, soundbar or other technology as a direct pass through on behalf of the Buyer, this portion of the contract price must be paid in full upfront. Any balancing payment is due and payable when the mirror is completed ready for dispatch notwithstanding that the date for delivery may be later.
8.3 The prices of Goods and delivery charges are liable to change at any time, but changes will not affect orders in respect of which we have already sent you an Order Confirmation. Save that if the rate of VAT changes between the date of your Order and the date of delivery, we will adjust the VAT you pay, unless you have already paid for the Goods in full before the change in VAT takes effect.
8.4 Exporting the Goods overseas may incur taxes which are not known at the time of purchase and which may be dependent on completion of certain formalities. It is the Buyer’s responsibility to complete all formalities needed for the export of goods and the payment of taxes. Any costs or taxes incurred by Overmantels in exporting the goods shall be passed on to the Buyer even if unknown at the time of Invoice.
8.5 Time for payment of any deposit or balance shall be of the essence. Late payment may delay delivery.
8.6 No payment shall be deemed to have been received until the Company has received cleared funds.
8.7 Payment for all Goods must be by credit, debit card or bank transfer. Certain premium credit cards, e.g. Amex, incur an additional charge (currently 2%).
8.8 If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment.
9. QUALITY AND WARRANTY
9.1 The Company warrants that (subject to the other provisions of these conditions) on delivery the Goods shall:
9.1.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
9.1.2 be reasonably fit for their intended purpose.
9.2 For the purposes of this Agreement the goods shall not be defective unless more than 2% (two per cent) of the goods are unusable by the Buyer by virtue of any defect in workmanship and materials.
10. CANCELLATION & REFUNDS
10.1 Where the Goods are faulty or do not comply with the warranties given in this Contract, the Buyer must notify the Company within 7 days of delivery and the Company will, at its option: 10.1.1 replace the Goods found not to conform to the warranty;
10.1.2 take such steps as the Company deems necessary to bring the goods into a state where they are free from such defects; or
10.1.3 take back the goods found not to conform to the warranty and refund the appropriate part of the purchase price. Provided that the liability of the Seller shall in no event exceed the purchase price of the goods.
10.2 Performance of any one of the above options shall constitute an entire discharge of the Seller’s liability under warranty.
10.3 The foregoing warranty is conditional upon: 10.3.1 the Buyer giving written notice to the Company of the alleged defect in the goods, such notice to be received by the Company within seven days of the time when the Buyer discovers or ought to have discovered the defect and in any event within one month of delivery of the goods; and
10.3.2 the Buyer affording the Company a reasonable opportunity to inspect the goods and, if so requested by the Seller, allowing the Company to arrange the return of the allegedly defective goods to the Company works, carriage pre-paid, for inspection to take place there. Should no defect be found, the costs of any inspection, collection or redelivery shall be chargeable to the Buyer.
10.4 Contracts are not subject to cancellation without the Company’s written consent. Where cancellation is accepted, the Seller shall in addition to any express terms of cancellation be entitled to reimbursement of any costs incurred by the Company in connection with the contract which will be deducted from the deposit paid before issuing a refund (if any).
11. LIMITATION OF LIABILITY
11.1 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract. The Buyer hereby confirms that it is responsible for ensuring that the goods satisfy its requirements and for performing all necessary tests on the goods.
11.2 Nothing in these conditions excludes or limits the liability of the Company:
11.2.1 for death or personal injury caused by the Company’s negligence; or
11.2.2 under section 2(3), Consumer Protection Act 1987; or
11.2.3 for fraud or fraudulent misrepresentation; or
11.2.4 for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability.
11.3 Subject to condition 11.1 and condition 11.2:
11.3.1 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the purchase price of the goods price; and
11.3.2 the Company shall be under no liability for any loss or damage (whether direct, indirect or consequential) howsoever arising which may be suffered by the Buyer. For the avoidance of doubt, this includes no liability for loss of profit, loss of business, or depletion of goodwill, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
12. FORCE MAJEURE
12.1 The Company reserves the right to defer the date of delivery or to cancel the Contract if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to its workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, without incurring any liability for any loss or damage whatsoever resulting therefrom, provided that, if the event in question continues for a continuous period in excess of 180 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
13.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
13.2 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 and the remainder of such provision shall continue in full force and effect.
13.3 Failure or delay by the Company 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.
13.4 Any waiver by the Company 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.
13.5 The parties to the Contract 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.
13.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.