1. CONTRACT TERMS
In these Terms and Conditions the following words have the following meanings:
"FPG" means Find Perfect Gift
"Contract" means the agreement between the FPG and the Purchaser for the purchase of the Items and incorporating them.
"Items" means the items to be supplied or procured by the FPG and purchased by the Purchaser on the terms of the Contract, as detailed in the Order or on the Website.
"Intellectual Property" means any and all trade marks, registered or unregistered design rights, UK or foreign patents, copyright, confidential information, trade or business names, database rights, know how, technology and other intellectual property rights (and any applications for the foregoing) whether registerable or not in any country.
"Order" means the purchase order containing details relating to the Items and the Contract.
"the Purchaser" means the person, firm, company or other organisation purchasing the Items from the FPG.
"Website" means any website operated by the FPG from time to time for the sale of Items.
2. BASIS OF THE CONTRACT
- These Terms and Conditions shall be incorporated in all Contracts of the FPG to sell the Items and are the sole conditions upon which the FPG will deal with the Purchaser. All other terms, conditions or other representations are excluded from the Contract, including any terms and conditions which the Purchaser may purport to apply under any Contract, and these Terms and Conditions shall prevail and shall govern the Contract to the entire exclusion of any express or implied terms. By accepting the Order or by ordering Items from using the Website the Purchaser agrees to be bound by these Terms and Conditions.
THESE TERMS AND CONDITIONS DO NOT AFFECT THE PURCHASER'S STATUTORY RIGHTS .
- No statement, description, information, warranty, condition or recommendation contained in any catalogue, price list, advertisement or communication or made verbally by any of the agents, representatives or employees of the FPG shall be construed to vary in any way any of the terms and conditions under the Contract unless otherwise agreed in accordance with Clause19 .
- All illustrations contained in the FPG's brochures, catalogues, advertisements or price lists are approximate only and are intended merely to give a general idea of the items described therein and shall not form part of the Contract.
- Any written quotation, estimate and/or advertised price for the Items shall be an invitation to treat and no binding contract shall be created by placing an Order on the FPG website or otherwise until the FPG has acknowledged the Order to the Purchaser either verbally or in writing (as appropriate).
- These Terms and Conditions apply to all purchases of Items from the FPG whether from its Website, by telesales, facsimile, e-mail or otherwise.
- Any reference in the Contract to "writing" or cognate expressions, include a reference to any communication effected by the Website, telex, cable, facsimile, email or any comparable means.
- Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted.
- The FPG may update these Terms and Conditions from time to time and any changes will be notified to the Purchaser via the e-mail address provided by the Purchaser or via a suitable announcement on the Website. The changes will apply to the use of the Website after the FPG has given notice. If the Purchaser does not wish to accept the new Terms and Conditions the Purchaser should not continue to use the Website. If the Purchaser continues to use the Website after the date on which the change comes into effect, the Purchaser's use of the Website indicates its agreement to be bound by the new Terms and Conditions.
3. PURCHASER'S DESIGN
- The Purchaser warrants that the Design it supplies to the FPG is accurate and free from error. Subject to Clause 3.2, the FPG shall not be liable for any losses, claims, damages, costs or expenses suffered by the Purchaser resulting from any error or inaccuracy in such Design.
- Where the FPG supplies Items bearing printed matter for the Design no claim whatsoever shall be made in respect of -
- the contents, colouring or position of such Design unless such claim is made within four days after delivery of the first consignment delivered under any Order. No such claim can be accepted if the said contents, Design or position comply with a proof submitted to and approved by the Purchaser or the FPG;
- any defective printing after any part of the Items comprised in any consignment delivered in pursuance of any Order has been used for any purpose whatsoever.
- Any time or date given for delivery of the Items whether specified in the Order or otherwise given by the FPG shall be taken as an estimate made by the FPG in good faith but shall not be binding upon the FPG as a term of the Contract or otherwise. Time of delivery is not of the essence for the purposes of the Contract and the FPG will not be liable for any loss or damage sustained by the Purchaser in consequence of any failure to deliver within such time or by such date or in consequence of the delay howsoever caused.
- Risk in the Items shall pass to the Purchaser from the time of despatch to the Purchaser or its agent and the Purchaser shall insure the Items against loss and damage by fire or other insurable risk from that time until the price thereof has been paid in full and cleared funds. The Purchaser shall hold on trust for the FPG any insurance monies received as a result of such loss or damage.
- Where Items are delivered by instalments under the Contract each instalment shall be deemed to be sold under a separate Contract and any failure on the part of the FPG for the delivery of a particular instalment or any defects in workmanship or materials affecting any particular instalment shall not entitle the Purchaser to repudiate the Contract with regard to any instalments remaining deliverable or to refuse or withhold payment for any Items delivered.
5. NOTICE OF NON-DELIVERY, SHORTAGE OR DAMAGED GOODS
The Purchaser shall notify the FPG of any shortage of or damage to Items delivered within 24 hours of delivery or collection and such notification shall be confirmed in writing by the Purchaser within 7 days of delivery. No responsibility whatsoever for such shortages or damages will be accepted by the FPG in the event of failure by the Purchaser to notify the FPG of the same within the said period. Items damaged in transit should not be accepted from the carrier and no credit will be given for or replacements made of Items accepted from the carrier in a damaged condition.
6. MINIMUM ORDER
The FPG reserves the right to establish a minimum order level. The Items delivered against an Order may vary in accordance with normal trade tolerances from the specifications stated in such Order, and the Purchaser shall not be entitled to claim any allowance in respect of such variation.
7. PASSING OF TITLE
- Ownership of the Items shall remain solely with the FPG until such time as the Purchaser has paid to the FPG the agreed price in full and cleared funds for all the Items under the Contract and any other contract between the parties.
- The Purchaser acknowledges that the Purchaser is in possession of the Items solely as a bailee of the FPG until such time as the full price thereof is paid in full and cleared funds to the FPG under Clause 8.1 above.
- Until such time as the Purchaser becomes the owner of the Items the Purchaser will store the Items on its premises separately from the Purchaser's own items or third party items and in a manner which makes them readily identifiable as the Items of the FPG.
- The Purchaser's right to possession of the Items shall cease if it does or suffers to be done any act or thing which would or might entitle the FPG to treat the Contract as having been repudiated for any reason.
- In the event of failure to pay the price in accordance with the Contract or any other default by the Purchaser under the Contract or any other contract between the parties, the FPG, its servants and agents may forthwith enter upon any premises or land occupied or owned by the Purchaser and may repossess all Items in relation to which ownership remains with the FPG. The Purchaser will co-operate in the identification of the FPG's Items. The FPG may exercise any right of re-sale in respect of Items which shall operate in addition to any other legal rights which may accrue to the FPG.
- Subject to the other terms of the Contract, the Purchaser is licensed by the FPG to agree to sell the Items, subject to the express condition that such sale shall be made by the Purchaser as agent and bailee of the FPG, whether the Purchaser shall sell on its own account or not, and the entire proceeds thereof are held on trust for the FPG until payment of the agreed price, and may not be mingled with other monies and shall be at all times identifiable as FPG monies.
- If the FPG has not received the proceeds of any sale under Clause 8.6 above, the Purchaser will upon being called so to do by the FPG, within 7 days thereof, assign to the FPG all rights against the person or persons to whom the Purchaser has supplied the Items.
- All prices quoted are inclusive of VAT and unless specifically stated are based upon costs current at the date of quotation.
- The Purchaser is responsible for the payment of all costs relating to the delivery, packaging, and other applicable taxes and levies in relation to the Items.
- The price of Items may be subject to variation to take account of variations in labour, materials or other costs since the date of the FPG's quotation or (if no quotation is issued) the Purchaser's Order. The FPG accordingly reserves the right to adjust the invoice price payable by the amount of an increase or decrease in such costs after the price is quoted and the invoice so adjusted shall be payable as if it were the original Contract price.
- The Purchaser agrees that section 32(3) of the Sale of Items Act 1979 shall not apply to Items sent by the FPG.
- Each consignment of Items may be invoiced separately and the FPG's invoices shall be paid by the Purchaser in full and cleared funds within 30 days following the date upon which the items were despatched or collected.
- If for any reason the Purchaser is unable to accept delivery when due, the Items will be invoiced and payment will fall due 30 days following the date upon which the Items were ready for delivery or collection. In such case the FPG will, if facilities permit, store the Items at the Purchaser's risk and expense until delivery and reserves the right to make additional charges for such storage and for any extra handling and transportation. This clause shall not affect any rights the FPG may have against a Purchaser for failing to accept delivery.
- If the Purchaser fails to make any payments when due the FPG, may at its option and without prejudice to any other rights or remedies which it may have under the contract: -
- suspend any further deliveries until payment is made; or
- repudiate the Contract;
and the FPG shall be entitled to charge interest (both before and after judgment) on the outstanding balance of all overdue accounts from the date of the invoice until the time of payment calculated on a daily basis at a rate of 4% above the base rate from time to time Bank of Ireland.
- Time for payment is of the essence for the purposes of the Contract.
- The FPG shall be entitled to suspend any and all deliveries and instalments until payment for all earlier deliveries has been made and the date for delivery shall be postponed to the extent to which such deliveries are suspended.
- The Purchaser shall not be entitled to withhold payment of any amount payable under the Contract (or any other contract between the parties) because of a disputed claim of the Purchaser in respect of faulty Items or any other breach of contract, nor shall the Purchaser be entitled to set-off against any amount payable under the Contract (or any other contract between the parties) to the FPG any monies which are or are purported to be payable by the FPG.
10. SUPPLY OF GOODS AND CANCELLATION OF ORDERS
- The Purchaser may not cancel any Orders for Items made to the Purchaser's specific requirements. Orders for Items kept in stock may be cancelled or returned only with the prior written consent of the FPG and within 7 days of the Order being placed by the Purchaser. In the event of such cancellation the Purchaser will be obliged to pay a re-stocking and handling charge and any administration costs involved.
- In respect of any Items supplied by the FPG but manufactured by third parties, the benefit of warranties or guarantees given to the FPG by such third party manufacturers or suppliers will wherever practicable be passed to the Purchaser subject to the terms and conditions upon which they were given by the third party.
- Where the FPG has provided artwork, such artwork shall be approved by the Purchaser or those acting on its behalf and no change to the artwork will be accepted once the said artwork has been used in production of any Items to be supplied to the Purchaser unless the Purchaser is prepared to accept a variation to the contract price as a result of such change. The Purchaser must confirm his acceptance to the variation of the Contract price in writing.
- Except as provided in these Terms and Conditions, all warranties, (whether express or implied by statute or common law or howsoever) including without limitation those of satisfactory quality or of fitness for a particular purpose (even if that purpose is made known expressly or by implication of the FPG) are hereby excluded.
11. SALES VIA WEBSITE
- No permission to copy, reproduce, modify or download the Website or any part of such site is given and in particular nothing on such sites may be reproduced for use in any publication, or distributed for any purpose without the prior written consent of the FPG.
- Any information found on the Website is intended for guidance only and the items and prices described in it are subject to change without notice. No representation or warranty is given as to the completeness or accuracy of any information on the Website, or that such information is current.
- Where the Website is hyper-linked to any site operated by any third party, the FPG accepts no responsibility or liability in respect of any produce, service, material or information on such site. The presence of such sites shall not be deemed to be a commendation or endorsement of such site by the FPG.
- The FPG will not be liable for damage to, or viruses that may affect, any computer equipment, software, data or other property as a result of access to, use of, or browsing of the Website or the downloading of any material data, text or image.
- The FPG will not be liable for any damage, loss, costs, or expenses suffered by the Purchaser as a result of any downtime (being the period during which the Website is unavailable for use by the Purchase for any reason whatsoever) of the Website.
- All trademarks used in the FPG's catalogue, brochure, price list or Website belong to the FPG or the registered proprietor of such trademarks.
- All rights relating to copyright, trademarks, know-how and any other Intellectual Property rights in materials or information on the Web-site are reserved to the ownership of the FPG.
- By continuing to use the Website you are deemed to accept these Terms and Conditions.
12. INTELLECTUAL PROPERTY
- The Purchaser warrants and represents that any Design or instruction furnished or given to the FPG shall not be such as to cause the FPG to infringe any third party Intellectual Property rights. The Purchaser shall indemnify and keep indemnified the FPG against any and all claims, actions, costs, expenses (including legal expenses and disbursements) made or brought against the FPG (whether in the UK or elsewhere) in respect of any infringement of any third party Intellectual Property rights as a result of the use of the Design under the Contract.
- The supply of Items under the Contract shall not confer any rights upon the Purchaser to use any of the FPG's Intellectual Property without the prior written consent of the FPG and at all times such Intellectual Property shall remain the property of the FPG. The supply of Items under the Contract shall not imply any right to the Purchaser to use any Intellectual Property which the FPG may have or any indemnity against infringement of the Intellectual Property rights of third parties by the FPG.
- No licence is granted to the Purchaser in these Terms and Conditions to use any trade mark of the FPG, or its affiliated companies including, without limitation, the trade mark Find Perfect Gift.
- The Website is provided by the FPG without any warranties or guarantees. The Purchase r must bear the risks associated with the use of the Internet. Nothing in this Clause 14 or elsewhere in the Contract is intended to restrict or exclude the FPG's liability for death or personal injury resulting from negligence, or for fraud or for any other liability or loss forbidden by English law.
- The FPG shall not be liable (whether or not the FPG has been advised of the possibility of such loss) in contract, tort, negligence or otherwise howsoever arising for any claim, damage, loss, costs or expenses (including legal expenses and disbursements) in respect of:
- any losses special to the Purchaser;
- any direct loss of profits;
- any direct loss of turnover; and/or
- any direct loss of revenue; or
- any indirect or consequential loss or damage howsoever caused including without limitation:
a) any losses special to the Purchaser;
b) any loss of profits;
c) loss of turnover;
d) loss of revenue;
e) loss of business; and/or
f) loss of data ;
and for the avoidance of doubt, the sub-clauses in this Clause 14.2 are intended and agreed by the Purchaser to be severable.
- Subject to Clause 14.1 , the aggregate liability of the FPG (whether in contract, tort, negligence or breach of statutory duty or otherwise) to the Purchaser for any loss or damage shall be limited to the price of the Items. The FPG's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to Â£50,000.
- The Purchaser shall be liable for and shall indemnify the FPG against any and all expenses, loss, liability or proceedings suffered by a third party arising as a result of or in connection with any act, omission, negligence, and/or breach of the terms of the Contract or otherwise through the default of the Purchaser.
- The FPG makes no representation or warranty that the use of the Items does not infringe the rights of any third party and the FPG accepts no liability in this respect.
14. DEFAULT OR INSOLVENCY OF PURCHASER
- In the event that:
- the Purchaser shall be in breach of any of its obligations under the Contract; or
- any distress or execution shall be levied on the Purchaser's property or assets; or
- if the Purchaser (being an individual or partnership) shall make or offer to make any voluntary arrangement or composition with its creditors or become bankrupt or if any bankruptcy petition be presented against him; or
- if the Purchaser (being a company) has an administrative receiver or administrator appointed or makes a voluntary arrangement with its creditors or commences to be wound up; or
- otherwise if the Purchaser fails to pays its debts as and when they fall due; or
- such equivalent event in Clauses 15.1.2 to Clause 15.1.4 occurs to the Purchaser in its local jurisdiction;
the FPG at its discretion and without prejudice to any other right or claim may by notice in writing immediately terminate, wholly or in part, the Contract between the FPG and the Purchaser or may (without prejudice to the FPG's rights subsequently to terminate the Contract for the same cause should it so decide) by notice in writing suspend further deliveries of Items.
The Purchaser may not use the Website for any of the following purposes:
- disseminating any unlawful, harassing, libellous, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable material
- transmitting material that encourages conduct that constitutes a criminal offence, results in civil liability or otherwise breaches any relevant laws, regulations or code of practice
- gaining unauthorised access to other computer systems
- interfering with any other person's use or enjoyment of the Website
- breaching any laws concerning the use of public telecommunications networks
- interfering or disrupting networks or web sites connected to the Website
- making, transmitting or storing electronic copies of materials protected by copyright without the permission of the owner
The Purchaser will indemnify us against all losses, liabilities, costs and expenses reasonably suffered or incurred by the FPG, all damages awarded against the FPG under any judgment by a court of competent jurisdiction and all settlements sums paid by the FPG as a result of any settlement agreed by the FPG arising out of in connection with:
- any claim by any third party that the use of the Website by the Purchaser is defamatory, offensive or abusive, or of an obscene or pornographic nature, or is illegal or constitutes a breach of any applicable law, regulation or code of practice;
- any claim by any third party that the use of the Website by the Purchaser infringes that third party's copyright or other intellectual property rights of whatever nature;
- any fines or penalties imposed by any regulatory, advertising or trading body or authority in connection with the use of the Website by the Purchaser.
16. AVAILABILITY OF THE WEBSITE
Although the FPG aims to offer you the best service possible, the FPG makes no promise that the services at the Website will meet your requirements. The FPG cannot guarantee that the service will be fault free. If a fault occurs in the service the Purchaser should report it to the Customer Services (see below for contact details) or by email at email@example.com and the FPG will attempt to correct the fault as soon as the FPG reasonably can.
The Purchaser's access to the Website may be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or services. The FPG will attempt to restore the Service as soon as it reasonably can.
17. THIRD PARTY WEBSITES
As a convenience to the FPG's customers, the Website may include links to other web sites or material which are beyond its control. The FPG is not responsible for content on the Internet or World Wide Web pages.
18. INTERNATIONAL USE
The FPG makes no promise that materials on the Website are appropriate or available for use in locations outside the United Kingdom , and accessing the Website from territories where its contents are illegal or unlawful is prohibited. If the Purchaser does choose to access this site from locations outside the United Kingdom, the Purchaser does so on its own initiative and will be responsible for compliance with local laws.
19. FORCE MAJEURE
- The FPG shall be entitled to delay or cancel delivery or to reduce the amount of the Items delivered if it is prevented from, hindered or delayed in supplying, obtaining or delivering the Items by normal route or means of delivery through any circumstances beyond its reasonable control, including but not limited to, strikes, lock-outs, accidents, war, fire, reduction in or unavailability of power at manufacturing plant, breakdown of plant or machinery or shortage or unavailability of labour and raw materials from normal source of supply and the FPG shall not be responsible to the Purchaser for any resulting loss or damage suffered by the Purchaser.
- If the performance of the Contract by the FPG shall be prevented by any circumstances of force majeure, the FPG shall have the right to be discharged from further performance of and liability under the Contract. If the FPG exercises such right, the Purchaser shall pay the contract price less a reasonable allowance for such part of the Contract that has not been performed by the FPG.
In the event of any dispute arising between the FPG and the Purchaser regarding any omission, matter, act or thing of whatsoever nature arising out of the Contract, then such dispute or difference shall at the option of the FPG only, be referred to such person as the parties may agree to as arbitrator, or failing such agreement as may be appointed on the request of either party by the President at the time being of the Chartered Institute of Arbitrators. Such arbitration shall take place in Manchester or other place as the parties may agree.
21 . HEADINGS
Marginal notes and headings in these Terms and Conditions shall not form part of the Terms and Conditions and are inserted for ease of reference only.
22 . VARIATION
All variations or modifications to the Contract will only be binding if recorded in writing and signed by the authorised signatories of both parties.
The waiver by the FPG of any right or the failure by the FPG to exercise any right or to insist on the strict performance of any provision of the Contract shall not operate as a waiver of, or preclude any further exercise or enforcement of any other right or provision of the Contract.
Each provision of the Contract is severable and distinct from the others. The parties intend that every such provision shall be and remain valid and enforceable to the fullest extent permitted by law. If in any particular case any of these Terms and Conditions shall be held to be invalid or shall not apply to the Contract, the other terms and conditions herein shall continue in full force and effect.
25. THIRD PARTY RIGHTS
A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
The Purchaser may not assign, sub-contract or in any way transfer or dispose any of its rights or obligations under the Contract without the prior written consent of the FPG.
- Any notice required to be served under the Contract shall be served on the FPG at its registered offices in the UK or such other address as the FPG may from time to time notify to the Purchaser in writing and on the Purchaser at the address in the Order by first class post, registered air mail or by email or facsimile. The Purchaser is responsible for notifying the FPG in writing of any change to its address, email address or facsimile number.
- Any such notice served by post shall be deemed to have been served in the case of a destination in the UK two days after the date of despatch and seven days after the date of despatch to any other destination. In the case of service by email, when the email is available to read in the recipient's inbox and in the case of facsimile when the addressee's machine acknowledges receipt thereof, provided that a copy of the notice or communication is also put into the post in accordance with Clause 24.1 within 24 hours following despatch of the initial version.
28. ENTIRE AGREEMENT
The Contract contains the entire agreement between the parties and supersedes all previous agreements and understandings between the parties. The Purchaser acknowledges that in entering into the Contract, it does not do so on the basis of and does not rely on, any representation, warranty or other provision except as expressly provided in the Contract.
29. GOVERNING LAW AND JURISDICTION
These Terms and Conditions and any Contract shall in all respects be governed or construed in accordance with laws of England and the parties hereby submit to the exclusive jurisdiction of the English courts.
This Website is owned and operated by the FPG, if you have any queries please contact:
Customer Services at 0844 550 303