Terms and Conditions
The customer’s attention is drawn in particular to the provisions of clause 8.
1. Interpretation
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9:00am to 5:00pm on any Business Day.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.3.
Contract: the contract between the Supplier and the Customer for the sale and purchase, and where relevant the delivery and installation, of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Delivery Date: has the meaning given in clause 4.1.
Delivery Location: has the meaning given in clause 4.3.
Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer’s order for the Goods, as set out in the Customer’s sales order form, and as attached to these Terms and Conditions.
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
Supplier: Ambient Spas Ltd (registered in England and Wales with company number 13606061, registered office Unit A-B Grove Mill, The Green, Eccleston, Chorley, Lancashire, PR7 5TZ).
Warranty Period: has the meaning given in clause 5.1.
1.2 Interpretation
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to day or days is a reference to a business day.
(c) A reference to a party includes its successors and permitted assigns.
(d) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(e) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(f) A reference to writing or written excludes fax and email.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted on the Customer’s signing these Terms and Conditions and upon payment of the deposit by the Customer, at which point the Contract shall come into existence. For orders placed via the Supplier’s website Order shall only be deemed to be accepted on the Customer’s acceptance these Terms and Conditions and payment for the Goods.
2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.5 Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, or on the Supplier’s website are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer.
3. Goods
3.1 The Goods are described in the Supplier’s catalogue and website, and in the Specification.
3.2 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and shall notify the Customer in any such event as soon as reasonably practical.
4. Delivery
4.1 Where delivery forms part of the Contract, the Supplier shall arrange for delivery of the Goods at a date agreed by the parties (Delivery Date).
4.2 The Supplier shall ensure that delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Goods and special instructions (if any).
4.3 Delivery of the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at least 15 days prior to the Delivery Date.
4.4 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
4.5 It is the sole responsibility of the Customer to ensure that the Delivery Location is accessible for the Supplier and that the location of the Goods suitable. This includes but is not limited to the location being clear, of sufficient size, of adequate quality surface, has water and electrical supply as required for the Goods. Should the Delivery Location not be accessible or suitable, the Supplier reserves the right to charge for all time and expenses of rectifying, whether that includes additional work on the Delivery Date or arranging a new Delivery Date. For the avoidance of doubt, under the terms of the Contract, the Supplier has no obligation to ensure the suitability or accessibility of the Delivery Location.
4.6 The Delivery Date is subject to change by the Supplier only. Should the Delivery Date be changed by the Supplier, they must confirm a new Delivery Date to the Customer as soon as reasonably practical.
4.7 In the event that the Customer requires a change in the Delivery Date, they must inform the Supplier at the earliest opportunity and a new Delivery Date must be agreed by the Supplier. The Customer is not permitted to change the Delivery Date without agreement of the Supplier. Any request by the Customer to amend the Delivery Date may be refused by the Supplier and the Customer must pay to the Supplier any additional costs associated with a change of Delivery Date.
4.8 The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods, or where the Delivery Location is not suitable or accessible in accordance with clauses 4.5, 4.6 and 4.7. For the avoidance of doubt, the Supplier will not be responsible for any delay in delivery where that delay is caused by a third party agent whose services are utilised in the delivery process.
4.9 If the Supplier fails to deliver the Goods, except under clause 4.7, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods, unsuitability or inaccessibility of the Delivery Location or the Customer’s failure to facilitate delivery, or the actions of any third party agent.
4.10 If the Customer fails to, or is unable to, accept delivery of the Goods on the Delivery Date, except where such failure or delay is caused by a Force Majeure Event, as a result of a third party, or as a result of the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
(a) The Supplier shall store the Goods until actual delivery takes place; and
(b) The Customer shall be liable for all related costs and expenses (including insurance) incurred by the Supplier; and
(c) The Supplier is not obliged to provide the Customer with any refund for the Goods. Any refund is at the discretion of the Supplier.
5. Quality
5.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period), the Goods shall:
(a) conform in all material respects with the Specification;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose.
5.2 The Customer may elect to extend the Warranty and if so much inform the Supplier no more than 10 days after the Delivery Date.
5.3 Subject to clause 5.3, if:
(a) the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) arranges for the return such Goods to the Supplier’s place of business (or such other location as specified by the Supplier) at the Customer’s cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.4 The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 if:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the Customer alters or repairs such Goods without the written consent of the Supplier;
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
(e) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
(f) the Customer moves the Goods from the Delivery Location.
5.5 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.7 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until completion of delivery.
7. Price and payment
7.1 The price of the Goods shall be the price set out in the Specification. The Contract price shall include the cost of the Goods and delivery of them. The cost of delivery shall be set out in the Order.
7.2 The Supplier may, by giving notice to the Customer at any time up to 10 days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the Delivery Date, or Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3 The price of the Goods:
(a) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
7.4 Where the Customer places an order online via the Supplier’s website:
(a) payment in full for the Goods is payable at the time of placing the Order.
(b) should the Contract be terminated at the request of the Customer, or as a result of the Customer’s breach, the Supplier may retain funds in payment for all costs and expenses incurred by the Supplier in the course of the Contract and in respect of termination, with the remainder being refunded to the Customer. All deductions are to be accounted for by the Supplier.
(c) where termination referred to at clause 7.4(b) is less than 10 days before the Delivery Date, the Supplier is not obliged to make any refund to the Customer. the Supplier may however make a refund at their discretion.
7.5 Where the Customer places an order directly with the Supplier at the Supplier’s place of business:
(a) a deposit of 10% of the full amount payable for the Goods is payable upon placing the Order.
(b) The balance is payable no less than 10 days prior to the Delivery Date.
(c) should the Customer not make payment in accordance with the above clause 7.5(b), the Supplier shall be entitled to delay delivery. Where a new Delivery Date is set and the Customer makes a subsequent failure to pay the balance in accordance with clause 7.5(b), the Supplier may terminate the Contract.
7.6 If the Customer fails to make a payment due to under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
7.7 Where the Contract is terminated in accordance with clause 7.5(c), the Supplier shall be entitled to retain the full deposit and, without limiting the Supplier’s remedies under clause 9, claim any additional costs and expenses incurred by them from the Customer.
7.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.9 The Supplier may claim their reasonable costs of recovering any sums payable by the Customer, including but not limited to legal costs incurred.
8. LIMITATION OF LIABILITY
8.1 The Supplier has obtained insurance cover in respect of its own legal liability for individual claims. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
8.2 The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) defective products under the Consumer Protection Act 1987.
8.4 Subject to clause 8.3, the Supplier’s total liability to the Customer shall not exceed the value of the Goods.
8.5 Subject to clause 8.3, the following types of loss are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
8.6 This clause 8 shall survive termination of the Contract.
9. Termination
9.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 days of that party being notified in writing to do so; or
(b) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
9.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to of the events listed in clause 9.1(a) to clause 9.1(b), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment, as set out at clause 7.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods supplied and/or costs incurred but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
9.5 Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
10. Force majeure
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 90 days, the party not affected may terminate the Contract by giving 10 days’ written notice to the affected party.
11. General
11.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
11.2 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties.
(b) Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
11.3 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.4 Waiver.
(a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
11.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 11.5 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.6 Notices.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
(b) Any notice shall be deemed to have been received
(i) if delivered by hand, at the time the notice is left at the proper address; and
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9:00 am on the two Business Day after posting.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
11.7 Third party rights.
(a) The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11.8 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
11.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
