These Terms and Conditions of Sale are the only contractual terms upon which Art by Lyn whose registered website is http://artbylyn.com (the “Company”) is prepared to deal with its customers (whether they are based within or outside the UK) and will govern all contracts for the supply of goods and/or services formed by our acceptance of a customer order or a customer’s acceptance of our quotation to the exclusion of any other contractual terms including any which a customer attempts to introduce.
1.1 In these conditions:
1.1.1 “you” means the person submitting an order for Goods.
1.1.2 “Goods” means original works of art and/or materials to be supplied under these conditions as displayed on our website or stated on our quotation, as appropriate.
1.2 The contract for supply of Goods (“Contract”) will be formed upon your acceptance of our quotation or our acceptance of your order. However, we only agree to sell goods to you subject to their availability and accordingly the contract may be cancelled by us in writing without liability to you if goods cannot within a reasonable period made available to us for sale. Acceptance of an order by us can only be made in writing whether in hard form or electronically.
1.3 We may prior to accepting any order carry out a credit check and then will only accept your order if we are satisfied with the results of such check. You confirm that you are happy for us to carry out such check.
1.4 These conditions may only be modified by a written variation signed by one of our officers. No other action by us (including delivery of Goods) is to be construed as our acceptance of any other conditions, whether set out in your general conditions of purchase or in any other documents.
1.5 These conditions together with any matters referred to on our quotation or order acknowledgement (as appropriate) embody the entire understanding of the parties and supersede any prior promises, representations, undertakings or implications.
1.6 Any omission or error in any sales literature, web page or site, order form, quotation, price list, order acknowledgement, despatch note, invoice or other document (whether written, oral or in electronic form) issued by us may be corrected by us without liability.
1.7 The provisions of the Contracts (Rights of Third Parties) Act 1999 are expressly excluded from the Contract.
1.8 Clause headings are for convenience only and do not affect the interpretation of these conditions. Reference in these conditions to a statutory provision will be construed as a reference to that provision as amended, re-enacted or extended at the relevant time. Words in the singular include the plural and vice versa.
1.9 The carrying out by us of any maintenance of Goods will be governed by our standard maintenance terms to the exclusion of any other terms.
1.10 Your attention is in particular drawn to conditions 2, 3, 8 and 9.
2.1 We warrant that goods will at the time of delivery be free from defects in workmanship and materials and correspond in all material respects with the relevant item description. If any goods do not conform to this warranty then we will at our option remedy the defect in question, replace the defective Goods or refund the price of the defective Goods. This remedy is the only remedy available to you for a breach of this warranty and is only available on condition that:
2.1.1 you notify us in writing of the defect within 7 days of delivery or, in the case of defects not apparent on reasonable inspection, within 1 month of delivery;
2.1.2 defective Goods are returned to us within 7 days of written notification referred to in condition 2.1.1 or, in the case of defects not apparent on reasonable inspection, within 1 month of delivery; and
2.1.3 our examination of defective Goods at our premises discloses to our satisfaction that the defect has not been caused by (a) your misuse, neglect, failure or inadequate maintenance, accident, improper storage, installation or handling, or (b) repair or alteration by a third party. You will refund to us the cost of any such examination where the remedy referred to under this condition is not available together with, at our discretion, a “restocking fee” of up to 20% of the price of the Goods to cover our administrative expenses.
2.2 We will so far as we are reasonably able pass on to you the benefit of all warranties received by us from the manufacturer of the materials used to create our goods.
2.3 Where Goods are returned under condition 2.1:
2.3.1 we will bear the cost of delivering any repaired or replacement Goods to you (subject to levy of any repacking fee due under condition 2.4);
2.3.2 the risk in the returned Goods shall pass to us upon receipt by us of the relevant goods.
2.4 Goods returned by you to us for any reason must be returned in their original packaging in substantially the same condition as they were delivered to you and must bear a Return Material Authorisation (RMA) identification number clearly visible on the exterior (such number to be obtained from us prior to return of Goods by you). We will not accept liability for Goods returned without such identification number. We may levy a fee for repackaging Goods returned to us in a poorly packaged state.
3 LIMITATION OF LIABILITY
3.1 Nothing in these conditions affects the statutory rights of a consumer as defined under the unfair contract terms act 1977. All conditions, warranties or representations not contained in these conditions and implied by statute or law are excluded or restricted to the fullest extent permitted.
3.2 This condition and condition 2 states our only liability to you under or in connection with the contract.
3.3 Without prejudice to condition 3.4, we will not be liable to you by way of representation (unless fraudulent), common law duty or under any express or implied term of the contract for any indirect, special or consequential loss or damage or loss of profits (whether caused by our negligence or that of our employees, agents or otherwise) arising in connection with the supply of goods and related services or their use by you.
3.4 Our entire liability in connection with the contract will not exceed the purchase price of the goods in question.
3.5 Notwithstanding any other term of these conditions our liability to you for:
3.5.1 death or personal injury resulting from our negligence or that of our employees, agents or subcontractors
3.5.2 damage for which we are liable to you under part 1 of the consumer protection act 1987 is not limited save that this condition 3 shall not confer a right or remedy on you to which you would not otherwise be entitled.
4.1 The price for Goods will be that stated on our quotation or website (as appropriate) on the date upon which Goods are dispatched to you. We may vary the price to the extent that the cost to us of acquiring or supplying Goods is increased between the date of quotation or order acknowledgement (as appropriate) and delivery including, without limitation, increases in the costs of carriage packaging or insurance or arising from a change in exchange rate, a change in delivery dates quantities or specifications for Goods requested by you or delay caused by your instructions.
4.2 Prices quoted by us are unless otherwise stated inclusive of (a) value added tax as appropriate or any similar taxes, levies or duties, (b) the costs of carriage, delivery, packaging and insurance, and (c) our handling charges, all of which will be included at the appropriate rates and paid by you.
5.1 Unless otherwise agreed in writing, you must pay for Goods prior to their despatch to you by such means as we may notify you of. Where the Goods are supplied on credit terms granted at our discretion, payment will be made by you within thirty days of the invoice date. Payment by cheque is deemed to have been made only upon such cheque being met on first presentation.
5.2 Where any payment to be made by you under the Contract is not made by its due date then, without prejudice to our other rights and remedies, we may:
5.2.1 charge interest on the outstanding amount (as well after as before judgement) on a day to day basis at the statutory rate from time to time applicable until the sum due is paid.
5.2.2 withhold further deliveries, suspend performance of the Contract, cancel any credit terms granted by us to you and/or withhold guarantees on previously supplied Goods until arrangements as to payment or credit have been established on terms which are satisfactory to us.
Where Goods are to be delivered in instalments, each delivery constitutes a separate contract and failure by us to deliver any one or more of the instalments in accordance with these conditions or any claim by you in respect of any one or more instalments will not entitle you to treat the Contract as a whole as repudiated.
7 ACCOUNT OPENING
Each new client shall fill in the account details form or our website and, by doing so, confirms their acceptance of these terms and conditions.
8.1 Delivery of Goods shall be made by us to the place designated by you in the accepted order or quotation, as appropriate. Delivery will be made during normal business hours.
8.2 Unless otherwise expressly agreed in writing, any delivery date or time specified by us in any quotation, despatch note or otherwise is a best estimate only and we will not be liable to you for any loss or damage sustained by you as a result of our failure to comply with such time scale.
8.3 If you pass or have a resolution passed for your winding-up, a receiver is appointed over the whole or any part of your undertaking, an administration order is made against you, you enter into or propose to enter into any arrangement with your creditors, become unable to pay your debts (or have no reasonable prospect of so doing), suffer a bankruptcy order or commit a material breach of the Contract, then we may without prejudice to any other right immediately terminate the Contract, suspend or cancel further delivery and/or recover Goods from you for which payment in full has not been received.
9 RISK AND TITLE
9.1 Risk in Goods shall pass to you upon delivery.
9.2 Title to Goods shall not pass to you until their full price and the price of any other goods which are the subject of any other contract between you and us has been paid. Until title passes, Goods shall be:-
9.2.1 stored by you at your premises in such a manner that they are clearly identifiable as being our property and be kept separate from any other goods whether or not supplied by us;
9.2.2 handed over to us on demand. We may re-take possession of such Goods and may enter onto your premises for such purpose.
9.3 If you fail to pay for any Goods in accordance with these conditions we may bring action against you for the price of the Goods at any time notwithstanding that title in Goods has not passed to you.
1 0 DAMAGE OR LOSS IN TRANSIT
We shall repair or replace with similar, free of charge any Goods damaged or lost in transit where delivery has been made by our carrier, provided that you give us and the carrier written notification of such damage or loss within 3 days of the date when the goods were received or would in the ordinary course of events have been received.
1 1 SPECIFICATION
11.1 All drawings, photographs, illustrations, specifications, performance data, dimensions and the like used by us in sales literature, on web pages or other documentation have been provided by us in the belief that they are accurate. However, they do not constitute a description of the Goods, shall not be taken to be representations made by us and are not warranted to be accurate.
11.2 The colour rendition of any item displayed on our website or in any literature used by us is only approximate and will be constrained within the limits of the devices used to photograph and reproduce the images. We will endeavour to present any images as accurately as possible so any difference with an actual item does not materially alter the functionality of the Goods and, because of this, you may not use this as a basis to cancel your order. We will not be liable for any loss or damage suffered in connection with any change. We will use our reasonable endeavours to advise you of any such impending variation as soon as we are able or upon our receiving notice of the same (as appropriate). You must check specifications and suitability for Goods prior to making an order.
11.3 Whilst we will make all reasonable efforts to advise on the correct application of the Goods, it remains your sole responsibility to ensure the Goods are suitable for your application. We will not be responsible for the failure of Goods which may be due to any incorrect or inappropriate usage or for any consequences arising therefrom.
1 2 INTELLECTUAL PROPERTY RIGHTS
No right of intellectual property in any Goods is granted to or vested in you other than the right to use the same. You will fully indemnify us against all liabilities, costs and expenses resulting from any claim that our use of any specification provided by you in connection with the Contract infringes the rights of any third party.
1 3 W E E E REGULATIONS
You will be responsible for disposing of the Goods at the end of their life at your own cost.
1 4 ORDER
Any order put in by you shall be firm and irrevocable as soon as the Company has received your order form.
1 5 FORCE MAJEURE
We will not have any liability under the Contract and may cancel or reduce the volume of Goods to be delivered under it if we are prevented from or delayed in delivering or performing by any circumstances beyond our reasonable control including but not limited to industrial action, war, fire, prohibition or enactment of any kind, or failures or acts on the part of our suppliers or sub-contractors or any other third parties (including your bank).
1 6 ASSIGNMENT
We may freely assign, sub-contract or otherwise transfer in whole or in part the Contract. You may not however do so without our written agreement.
1 7 GOVERNING LAW
17.1 The Contract is governed by the laws of Scotland and the Scottish courts shall have the non-exclusive jurisdiction to resolve any disputes arising out of or under it.
17.2 Notices required or permitted to be given under these conditions must be in writing (including without limitation by electronic mail) addressed to the relevant party at its registered office or principal address.
17.3 No waiver by us of any breach of the Contract by you is considered as a waiver of any subsequent breach of the same or any other provision. If any provision of these Conditions is held by a competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question is not affected.