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Terms and Conditions
1.1 In these terms and conditions ("the Conditions"):
"Consumers" means an individual not acting in the course of a business or profession;
"the Contract" means the Order Form and our acceptance of the Order Form;
"the Goods" means any goods (including all components, parts and accessories) to be supplied by Us to the Customer under these Conditions;
"Order Form" means our order form on which orders shall be accepted by Us for the supply of the Goods;
"We/ Us/ Our" means Swanneck Limited is a company registered in England and Wales under company no. 8294536 registered office address is 151 Syndey steet, chelsea, london, SW3 6NT;
"Website" means Our Website www.swanneckpen.com;
"You/ Your" means the person, firm or company who purchases the Goods from us;
"Your Premises" means the address for delivery of the Goods to you as indicated by you in the Order Form.
1.3 By placing an Order with us, you shall be deemed to have accepted and agreed that the supply of the Goods by us shall be in accordance with these Conditions.
1.4 No variation of these Conditions shall apply unless confirmed in writing by or on behalf of a Director of Swanneck Limited. We reserve the right to amend and update these Conditions at anytime without notice.
1.5 These Conditions together with our acceptance of the Order Form or Order constitute the whole agreement between the parties and supersede any prior promises, representations, undertakings or implications whether written or oral.
1.6 We request that all Consumers note the right of cancellation in clause 3 and the limitation of liability in clause 8.
2. PLACING AN ORDER
2.1 Orders can be placed by email, post or over the telephone. Where Goods are ordered from the Website you will be required to submit an online Order Form. You will be required to click and accept that you have read these Conditions before being able to proceed. An automatic receipt of order will be sent to the email address you have provided (for the avoidance of doubt this will not constitute acceptance of Your Order).
2.2 All Goods are subject to availability. Where Goods are available we will send you written confirmation of acceptance of your Order ("Acceptance Note") either by email or post, forming a binding contract. Where the Goods are not available we will notify you of this and advise when the Goods will be available to order.
2.3 You will be responsible for ensuring that the Order Form and Acceptance Note is complete and accurate. You must notify us in writing as soon as possible if there are any inaccuracies.
2.4 Subject to clause 3 below, we shall not be bound to accept the cancellation, alteration or suspension for whatever reason of any accepted Order Form. Our agreement to any such cancellation, alteration or suspension must be confirmed in writing by us and you will reimburse us in full for all and any expenses and loss incurred by us as a result.
3.1 If you are a Consumer you may by notice in writing cancel the Contract within 7 days from the date of delivery of the Goods. Your Order will not be considered cancelled until written notification is received from you. You shall be entitled to a full refund within 30 days of receipt by us of such notice and the return of the Goods. Please see our Returns Policy for further information.
4.1 The description of the Goods shall be as set out on our Website or in our brochures. All drawings, descriptions, specifications and advertising issued by us are issued or published for the sole purpose of giving an approximate idea of the Goods described and do not form part of the Contract.
5. PRICE AND PAYMENT
5.1 A price list for the Goods and the cost of postage and packaging can be found on our Website or in our brochures.
5.2 Unless otherwise agreed, the price of the Goods shall be the price set out in the Acceptance Note.
5.3 All prices, fees, charges, disbursements, expenses and other sums payable hereunder are in pounds sterling (£) and are inclusive of Value Added Tax or other UK sales tax. However, they are exclusive of all costs and charges in relation to postage, packaging, loading, unloading, overseas taxes, carriage and insurance, all of which amounts you shall pay in addition.
5.4 Time of payment:
5.4.1 for Orders placed via our Website payment page must be made at the time of placing your Order online;
5.4.2 for Orders placed over the telephone or sent by post must also be made at the time of placing your Order. However, payment for Orders placed over the telephone or sent by post may also be made within 21 days of our acceptance of your Order, provided we have agreed to this in advance in writing.
5.5 Payment can be made by major credit or debit cards (except for American Express). We reserve the right to obtain validation and verification of the authenticity of your credit card or debit card details before processing your Order. Please note that our payment process server uses encryption to ensure the security of your credit card details.
5.6 No payment shall be deemed to have been received by us until we have received cleared funds.
5.7 All payments payable to us under the Contract shall become due immediately on termination of the Contract despite any other provision.
5.8 You shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
5.9 Where it has been agreed by us in writing that payment of the Goods is to be made by you within 21 days of our acceptance of your Order (in accordance with clause 5.4 above) and you fail to pay on time, we shall be entitled, without limiting any other rights we may have, to charge interest on any outstanding amount at the rate of 2% above the base lending rate from time to time of the Bank of England accruing on a daily basis until payment is made whether before or after judgment. We reserve the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
6.1 Provided you are a Consumer, we guarantee that, subject to these Conditions, for a period of 12 months from the date of delivery the Goods will be:
6.1.1 of satisfactory quality within the meaning of the Sale of Goods Act 1979;
6.1.2 reasonably fit for the purpose for which the Goods are being sold by us;
6.1.3 reasonably fit for the purpose for which the Goods are being bought if you had made known that purpose to us in writing and we confirmed acceptance of the purpose in writing.
6.2 We shall not be liable for a breach of any of the guarantees in clause 6.1 unless:
6.2.1 you give written notice of the defect to us within 7 days of when you discover or ought to have discovered the defect; and
6.2.2 We are given a reasonable opportunity after receiving the notice of examining the Goods and you (if asked to do so) return the Goods to our place of business at our cost.
6.3 We shall not be liable for a breach of the guarantees in clause 6.1 where;
6.3.1 you make any further use of the Goods after giving such notice as required by clause 6.2.1.
6.3.2 the defect arises because you failed to follow our oral or written instructions as to the storage, use of, or maintenance of the Goods; or
6.3.3 you alter or repair the Goods without our written consent.
6.4 Subject to the provisions of this clause 6, if any of the Goods do not conform with any of the guarantees in clause 6.1, we shall at our option repair or replace the Goods or refund the price of such Goods at the pro rata Contact rate provided that on our request you shall at our cost and expense return the Goods or the part of the Goods which is defective to us.
6.5 If you are a Consumer, nothing in these Conditions affect your statutory rights.
7.1 If you:-
7.1.1 commit any breach of any of these Conditions or any other provisions of the Contract and, in the case of a breach capable of remedy, fail to remedy the same within 14 days after receipt of a written notice from us giving full particulars of the breach and containing a request for it to be remedied; or
7.1.2 have an encumbrancer take possession of or a receiver or administrator or administrative receiver appointed over any of your property or assets (or other similar legal action taken anywhere in the world); or
7.1.3 make a voluntary arrangement with your creditors or become subject to an administration order or bankruptcy order (or other similar legal action taken anywhere in the world); or
7.1.4 enter into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations of you under this contract); or
7.1.5 cease or threaten to cease to carry on business;
then and in any such case we shall have the right (without prejudice to any of its other remedies) to terminate this Contract forthwith by written notice to you.
7.2 The termination of this Contract for whatever reason shall be without prejudice to the rights and obligations of the parties accrued up to and including the date of such termination.
8. LIMITATION OF LIABILITY
8.1 Subject to clause 6 the following provisions set out our entire financial liability (including any acts or omissions of our employees, agents and sub- contractors) to you in respect of:
8.1.1 any breach of these Conditions;
8.1.2 any representation, statement or tortuous act or omission including negligence arising under or in connection with these Conditions or the Contract;
8.2 Nothing in these Conditions excludes or limits our liability for death or personal injury caused by our negligence or fraudulent misrepresentation.
8.3 Provided you are not a Consumer, all guarantees, 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.
8.4 Subject to conditions 8.2 and 8.3:
8.4.1 Our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance of the Contract shall be limited to the Contract price;
8.4.2 We shall not be liable to you for any claims, costs, expenses, liabilities, losses, proceedings and/ or demands of any nature arising in connection with the Contract or the use of the Website, or for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise) costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract or the use of the Website.
8.5 You agree to indemnify and hold us and our subsidiaries, affiliates, officers, directors and employees harmless from any claims, costs, expenses, liabilities, losses, proceedings, demands or any other losses (including all reasonable professional fees) made by a third party to or arising out of your breach of any terms of these Conditions or your violation of any law or the right of the third party.
8.6 This clause 8 shall survive termination of the contract and your use of the Website.
9. DATA PROTECTION
9.1 You warrant that the details and information provided to us are true and correct and that any future additions or alterations to your detail and information will be true and correct, and submitted in a timely manner. We will not be liable to you for any reason arising from any instructions or Order Form supplied by you which is incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form or arising from their late arrival or non arrival or other fault of Yourself.
10. FORCE MAJEURE
10.1 We reserve the right to defer the date of delivery, to cancel the Contract or reduce the volume of the Goods ordered by you (without liability to you) if we are prevented from or delayed in the carrying on of our business due to circumstances outside our reasonable control including, without limitation, strike, lock-out or other industrial action (whether or not relating to either party's workforce), terrorist activity, civil commotion, government action, acts of God, war or national emergency or other circumstances beyond our reasonable control provided that, if the event in question continues for a continuous period in excess of three months then you shall be entitled to give notice in writing to terminate the Contract.
11.1 The headings to these Conditions are for convenience only and shall not affect their construction.
11.2 Where the context so admits reference in these Conditions to one gender shall include each other gender and words denoting the singular shall include the plural and vice-versa.
11.3 References to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
11.4 Failure or delay by us in enforcing or partially enforcing any provision of these Conditions shall not be construed as a waiver of any of our rights under these Conditions or the Contract. No waiver of any of these Conditions by either party shall be deemed to be a further or continuing waiver of any subsequent breach of that term or condition or any other term or condition.
11.5 You shall not be entitled to assign or sub-licence or part with possession of any of your rights or liabilities hereunder. We shall be free to sub-contract the performance of all or part of our obligations hereunder.
11.6 A person who is not party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract or these Conditions.
11.7 Any copyright, trade-marks or other intellectual property rights contained in all particulars, brochures or other material prepared by M. A. D. Associates Limited shall belong to M. A. D. Associates Limited unless otherwise stated.
11.8 These Conditions and any disputes or claims arising out of or in connection with their subject matter are governed by and construed in accordance with the law of England.
11.9 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Conditions.
12. NOTICES AND SERVICE
12.1 Any notice required under these Conditions or by statute, law or regulation shall (unless otherwise provided) be in writing and delivered in person, sent by registered mail or sent by email to:
12.1.1 In our case - to our registered office or such address as we may from time to time designate by notice in accordance with this clause;
12.1.2 In your case - to your registered office (if you are a limited company) or (in any other case) to any of your addresses set out in any document which forms part of these Conditions or such other address as shall be notified by you to us.
12.2 Any such notice shall be considered to have been given on the first working day of actual delivery, or in any event within 2 working days after it was posted in the manner hereinbefore provided if posted and delivered within the United Kingdom.