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In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
means any day other than a Saturday, Sunday or bank holiday;
means the person who confirms a purchase order with the Seller;
means the contract for the purchase and sale of the Goods which shall incorporate, and be subject to, these Terms and Conditions [and is attached hereto as Schedule 1];
means the price stated in the Order Confirmation payable for the Goods;
means the date on which the Goods are to be delivered as stipulated in the Buyer's order and accepted by the Seller, as evidenced in the Contract;
means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with the Contract;
means a calendar month; and
means the email received by the Buyer and logged in the webshop admin area when an order is confirmed.
means the purchasing web pages at www.florismart.com
means FloriSmart UK Ltd, a company registered in England under 09130213 of 43a Amies Street, London SW11 2JL and includes all employees and agents of FloriSmart UK Ltd.
Unless the context otherwise requires, each reference in these Terms and Conditions to:
1. "writing", and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
2. a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
3. "these Terms and Conditions" is a reference to these Terms and Conditions and any Schedules as amended or supplemented at the relevant time;
4. a Schedule is a schedule to these Terms and Conditions;
5. and a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.
6. a "Party" or the "Parties" refer to the parties to these Terms and Conditions.
The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
Words imparting the singular number shall include the plural and vice versa.
References to any gender shall include the other gender.
Basis of Sale
No variation to these Terms and Conditions, or to the Contract, shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
Prices as quoted in the web shop, sales literature, price lists and other documents issued by the Seller in relation to the Goods are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. No contract for the sale of the Goods shall be binding on the Seller unless it has accepted an order placed by the Buyer by whichever is the earlier of:
the Seller's written acceptance;
delivery of the Goods; or
the Seller's invoice.
Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
Orders and Specifications
No order submitted by the Buyer shall be deemed to be accepted by the Seller until the order is confirmed in the administration section of the FloriSmart web shop.
The specification for the Goods shall be that set out in the Seller's sales documentation unless varied expressly in the Buyer's order (if such variation(s) is/are accepted by the Seller). The Goods will only be supplied in the minimum units thereof stated in the Seller's price list or in multiples of those units. Orders received for quantities other than these will be adjusted accordingly.
Illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by the Seller are intended as a guide only and shall not be binding on the Seller.
The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Buyer's specification, which do not materially affect their quality or performance.
No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller on the terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation.
Once an order has been confirmed, the Seller acknowledges that it has a responsibility for the goods and their delivery, which it will seek to fulfil to the best of its ability. Liability for non delivery, late delivery, missing goods, damage and other issues is limited according to other clauses in this contract.
The Contract Price of the Goods shall be the price listed in the web shop order confirmation document at the date of acceptance of the Buyer's order or such other price as may be agreed in writing by the Seller and the Buyer.
Any settlement discount specified by the Seller in the Contract will be allowed by the Seller to the Buyer in respect of Goods for which payment is received by the Seller on or before the due date and otherwise in accordance with the payment terms set out in these Terms and Conditions and provided that no other amounts owing by the Buyer to the Seller are overdue and unpaid.
Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are inclusive of the Seller's charges for packaging and transport.
The Contract Price is exclusive of any applicable value added tax which are imposed or charged by any competent fiscal authority in respect of the Goods, which the Buyer shall be additionally liable to pay to the Seller.
Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall invoice the Buyer for the Contract Price of the Goods on or at any time after confirmation of the order.
The Buyer shall pay the Contract Price of the Goods (less any discount or credit allowed by the Seller, but without any other deduction, credit or set off) within 14 Business Days of the date of the Seller's invoice or otherwise in accordance with such credit terms as may have been agreed in writing between the Buyer and the Seller in respect of the Contract. The time for the payment of the Contract Price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
All payments shall be made to the Seller as indicated on the form of acceptance or invoice issued by the Seller.
The Buyer may not deduct any amounts from the purchase price to be paid on the grounds of an alleged claim. The Buyer may not suspend the payment of the purchase price on the grounds of a complaint about the products delivered.
The Buyer will be in default upon the expiry of the agreed term of payment. The Seller will then be entitled to rescind the agreement with immediate effect. The Seller is not liable regarding any consequences that this rescindment might entail.
If the Buyer is in default, the Seller will be entitled to charge interest of 0.25% per day or, should the legal rate be higher, the legal rate on the amount outstanding, as from the due date of the invoice until the date of payment in full.
If third parties are instructed to collect overdue payments, the Buyer shall account to the Seller for any court and/or out-of-court costs involved, subject to a minimum of 15% of the outstanding sum, and such sums will fall due immediately.
The Seller is not obliged to accept orders from any customer or buyer who has not supplied the Seller with references satisfactory to the Seller. If at any time the Seller is not satisfied as to the creditworthiness of the Buyer it may give notice in writing to the Buyer that no further credit will be allowed to the Buyer in which event no further goods will be delivered to the Buyer other than against cash payment and notwithstanding sub-Clause 6.2 of these Terms and Conditions, all amounts owing by the Buyer to the Seller shall be immediately payable.
Delivery of the Goods shall be made by the Seller delivering the Goods to the place in the United Kingdom specified in the Buyer's order and/or the Seller's acceptance and/or the Contract as the location to which the Goods are to be delivered by the Seller or, if no place of delivery is so specified, by the Buyer collecting the Goods at the Seller's premises or place allocated by the Seller at any time after the Seller has notified the Buyer that the Goods are ready for collection.
The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Seller will not be liable for any loss incurred by the Buyer as a result of delays beyond the delivery time quoted.
Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Terms and Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
The Seller reserves the right not to perform orders if the Buyer has not paid for previous deliveries within the agreed term of payment.
If the Seller fails to deliver the Goods or any part thereof on the Delivery Date other than for reasons outside the Seller's reasonable control or the Buyer's or its carrier's fault:
if the Seller delivers the Goods within 2 business days thereafter, the Seller shall have no liability in respect of such late delivery.
Should the Seller not be able to perform (part of) an order, he will inform the Buyer as soon as possible. If the Seller is not able to deliver the ordered quantity, he may deliver a smaller quantity or postpone the performance and/or, by mutual agreement with the Buyer, deliver other products that are similar or of the same value.
If the Buyer has not taken delivery of the products at the agreed time and place, the Buyer will be in default and liable for any loss in quality suffered due to storage. The products ordered will be available to the Buyer during storage and will be stored to the Buyer's account and at the Buyer's risk.
If however, the Buyer has not taken delivery of the products after a limited storage period (that may be considered reasonable in view of the product type) and if in the opinion of the Seller the risk of loss of quality and/or decay of the products so demands in order to limit loss, the Seller will be entitled to sell the products in question to a third party.
Non performance by the Buyer does not relieve him of his obligation to pay the full price.
The Seller will not be liable for any loss incurred as a consequence of non-delivery.
The Buyer is under a duty whenever possible to inspect the Goods on delivery or on collection as the case may be. Where the Goods cannot be examined the carrier's note or such other note as appropriate shall be marked "not examined". Complaints concerning visible and non-visible defects in products delivered must be notified to the Seller by e-mail immediately after discovery but that the latest within 24 hours of receipt. The moment of receipt of the complaint by the Seller is decisive. In case of a complaint, the Buyer is required to state in the e-mail a) a detailed and accurate description of the defect(s) including photos; and b) a statement of any other facts from which it can be inferred that the products delivered and the products rejected by the Buyer are one and the same. The Buyer is to enable the Seller to investigate, or instigate an investigation of, the validity of the complaints on location and/or take back the products delivered. The products must be stored in the original packaging. Complaints in respect of a part of the products delivered will not entitle the Buyer to reject the entire delivery. Once the time limits referred to above have elapsed, the Buyer will be deemed to have accepted the products delivered or the invoice rendered. The Seller will no longer be obliged to handle any claims submitted by the Buyer. Subject to sub-Clauses 9.4 and 9.5, the Seller shall, at its discretion make good any shortage in the Goods or, where appropriate, replace any Goods damaged in transit as soon as it is reasonable to do so, or refund the cost of the goods, but otherwise shall be under no liability whatsoever arising from such shortage or damage.
Risk and Retention of Title
Risk of damage to or loss of the Goods shall pass to the Buyer at:
in the case of Goods to be delivered at the Seller's premises, the time when the Seller notifies the Buyer that the Goods are available for collection; or
in the case of Goods to be delivered otherwise than at the Seller’s premises, the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, legal and beneficial title of the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods.
Until payment has been made to the Seller in accordance with these Terms and Conditions and the Contract and title in the Goods has passed to the Buyer, the Buyer shall be in possession of the Goods as bailee for the Seller and the Buyer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by the Seller and shall insure the Goods against all reasonable risks.
The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all money owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
The Seller reserves the right to repossess any Goods in which the Seller retains title without notice. The Buyer irrevocably authorises the Seller to enter the Buyer's premises during normal business hours for the purpose of repossessing the Goods in which the Seller retains title or inspecting the Goods to ensure compliance with the storage and identification requirements of sub-Clause 10.4.
The Buyer will be entitled to sell the products in the ordinary course of its business. It hereby assigns all claims that it may acquire against third parties pursuant to such sales. The Seller acknowledges this assignment and reserves the right to pursue any such claims as soon as the Buyer fails to fulfil its payment obligations.
The Buyer may possess the products in the ordinary course of its business, whether or not the products are mixed with other products not supplied by the Seller. The Seller will acquire joint title to the new goods, in the proportion in which the Seller's products form part of those new goods.
The Buyer's right to possession of the Goods in which the Seller maintains legal and beneficial title shall terminate if:
the Buyer commits or permits any material breach of his obligations under these Terms and Conditions;
the Buyer enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986, the Insolvent Partnerships Order 1994 (as amended), or any other scheme or arrangement is made with his creditors;
the Buyer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors;
the Buyer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Buyer, notice of intention to appoint an administrator is given by the Buyer or any of its directors or by a qualifying floating charge-holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer.
The Seller may assign the Contract or any part of it to any person, firm or company without the prior consent of the Buyer.
The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
Limitation of Liability
Subject to the provisions of Clauses 7, 8 and 12 the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
any breach of these Terms and Conditions or the Contract;
any use made (including but not limited to modifications) or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
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.
Nothing in these Terms and Conditions excludes or limits the liability of the Seller:
for death or personal injury caused by the Seller's negligence;
for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or
for fraud or fraudulent misrepresentation.
Subject to sub-Clauses 14.2 and 14.3:
the Seller'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 Contract Price; and
the Seller shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms and Conditions or under the Contract shall constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (and, by extension, the Contract). The remainder of these and the Contract shall be valid and enforceable.
Third Party Rights
A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
Law and Jurisdiction
These Terms and Conditions and the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or to the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.