Tusk Spa: Terms and Conditions

Definitions

1.1 Company means Tusk LTD. Customer means the person who accepts a quotation of the Company for the sale of the Goods or agrees to buy the Goods from the Company. Conditions means the standard terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Company. Contract means the Contract for the sale by the Company and purchase by the Customer of the Goods the subject of the Order.
Goods mean the supply of sanitary and bathroom products and other products any installation of the Goods and associated specification and design services which the Customer agrees to buy from the Company.
Order means the written order signed by the Customer for the Goods. Price - means the price for the Goods excluding (where applicable) carriage, packing, insurance and Value Added Tax.
1.2 Any reference on the Conditions to any provision of a Statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in the Conditions are for convenience only and shall not affect their interpretation.

Conditions

2.1 The Conditions shall apply to all contracts for the sale of Goods by the Company to the Customer and will override any terms or conditions which the Customer may purport to apply under any purchase order confirmation of order or similar document.
2.2 All Orders for the Goods shall be deemed to be an offer by the Customer to purchase the Goods pursuant of the Conditions.
2.3 Acceptance of the delivery of the Goods shall be deemed conclusive evidence of the Customer’s acceptance of these Conditions.
2.4 No variations to the Conditions (including any special terms agreed between the parties) shall apply unless agreed in writing by a Director of the Company.
2.5 Any typographical, clerical or other error of omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.

Contract

3.1 Any quotation issued by the Company to the Customer shall not be binding upon the Company. The Contract will be concluded upon receipt by the Company of the Order signed by the Customer.
3.2 In the event that the terms of the Order are in conflict with any of the Conditions, the Conditions shall prevail.
3.3 The Customer acknowledges that he has not been induced to enter into the Contract by any written and/or oral representation made by or on the behalf of the Company other than those contained in the Order.

Price of the Goods

4.1 Prices quoted by the Company for the Goods shall not be binding upon the Company. Prices applicable to the Contract shall be those recorded in the Order.
4.2 Prices do not include Value Added Tax or any other tax, levy, duty or surcharge whether imposed before or after concluding the Contract.
4.3 Unless stated to the contrary in the Order, prices include packaging and are consigned free to the Customer’s address recorded in the Order (“the Delivery Address”).

Payment

5.1 The Company shall not be bound to deliver the Goods until the Customer has paid for the Goods. Payment shall be due in cleared funds not less than two days prior to the delivery date quoted by the Company in the Order. Time for payment shall be of the essence.
5.2 If payment is not made on the due date then without prejudice to the Company’s rights under the Conditions, the Company shall be entitled to charge interest to the Customer on the amount outstanding at the rate of 3% above the prevailing base rate of Lloyds TSB Plc.
5.3 If the Customer fails to make payment by the due date, the Company may suspend or cancel delivery of the Goods.

Catalogues and other publication material

6.1 Any description and/or illustration of the Goods appearing in catalogues, brochures and other publications is believed to be correct and current but is not warranted as being correct by the Company and shall not be deemed to form part of the Contract.

Designs

7.1 The provision of specification and design services associated with the Goods (including copyright, design right, or other intellectual property rights) shall remain the property of the Company. The Customer shall not copy nor cause to be copied or reproduce nor cause to be reproduced such specifications and designs.

Warranties and Liability

8.1 The Company warrants that the Goods shall be of reasonable quality and fit for their purpose at the date of delivery. Nothing herein shall affect the statutory rights of the Customer. The Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Company’s approval.
8.2 The Company shall be under no liability under 8.1 above if the Price for the Goods has not been paid in full by the due date for payment.
8.3 Any claim by the Customer based on any defect in the quality of the Goods or their fitness for purpose shall (whether or not delivery is refused by the Customer) be notified in writing to the Company within 2 days from the date of delivery. If the Customer does not notify the Company, the Customer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure, and the Customer shall be bound to pay the Price as if the Goods had been delivered in accordance with the Contract.
8.4 Where a valid notification is made under 8.3 above, the Company shall be entitled to replace the Goods (or the part in question) free of charge or, at the Company’s sole discretion, refund to the Buyer, the Price of the Goods (or a proportionate part of the Price), but thereafter the Company shall have no further liability to the Customer.
8.5 Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Customer by reason of any written and/or oral representation, or any express and/or implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in conjunction with the supply of the Goods or their use or resale by the Customer.
8.6 Time shall not be of the essence in the Contract. The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Goods, whether or not the delay or failure was due to any cause beyond the Company’s reasonable control.

Customer’s specification or design

9.1 Where the Company supplies the Goods in accordance with the Customer’s specification or design, any addition, alteration or variation shall be subject to an extra charge and the Customer shall indemnify the Company against all damages, penalties, costs and expenses to which it may become liable through the infringement of the rights of third parties.

Delivery

10.1 All Goods supplied by the Company shall be delivered to the Customer at the Delivery Address. The Customer shall make all necessary arrangements to take delivery of the Goods when they are delivered by the Company.
10.2 Any dates quoted for delivery of the Goods are approximate only and the Company shall not be liable for any delay in the delivery of the Goods howsoever caused. The Goods may be delivered by the Company in advance of the quoted delivery date.
10.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate Contract and failure by the Company to deliver any one or more of the instalments in accordance with the Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
10.4 If the Company fails to deliver the Goods for any reason other than any cause beyond the Company’s reasonable control or due to the Customer’s default, and the Company is held to be liable to the Customer, the Company’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered over the Price of the Goods.
10.5 If the Customer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery then, without prejudice to any other right or remedy available to the Customer, the Customer may (1) store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage or (2) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the Price under the Contract or charge the Customer for any shortfall below the Price under the Contract.

Shortage damage and non-delivery

11.1 No claim against the Company for shortage, damage in transit or non-delivery of the Goods will be entertained unless shortage of or damage to the Goods is reported in writing to the Company and any third party carrier within two days of delivery and in the case of non-delivery of Goods it is reported in writing to the Company and any third party carrier within three days of the date of despatch as invoiced to the Customer.

Passing of ownership and risk in the Goods

12.1 The risk in the Goods supplied by the Company shall pass to the Customer on delivery to the Delivery Address.
12.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of the Conditions, ownership in the Goods shall not pass to the Customer until the Company has received in cash or cleared funds payment in full of the Price of the Goods and all other goods agreed to be sold by the Company to the Customer for which payment is then due.
12.3 Until such time as ownership in the Goods passes to the Customer, the Customer shall hold the Goods as the Company’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Company’s property. Until that time the Customer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Company for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
12.4 Until such time as ownership in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold) the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.

Cancellation

13.1 An Order cannot be cancelled by the Customer without the written consent of the Company. In the event of the Goods being returned to the Company as a result of the cancellation of an Order, in addition to the Price, the Customer shall pay to the Company a cancellation charge equivalent to 25% of the price to recompense the Company for the cost of transport administration and restocking and the Customer agrees with the Company that this is a reasonable pre estimate of the Company’s costs.

Force Majeure

14.1 The Company shall not be liable for any default due to any act of God, war, civil disturbance, malicious damage, strike, lockout, industrial action, fire, flood, drought, extreme weather conditions, compliance with any law or governmental order, rule, regulation, direction or other circumstance beyond the control of the Company.

Insolvency

15.1 If the Customer fails to make payment for the Goods in accordance with the Conditions or commits any other breach of the Conditions or if any distress or execution shall be levied upon any of the Customer’s property or if the Customer offers to make any arrangement with his creditors or if any bankruptcy petition is presented against the Customer or the Customer is unable to pay his debts as they fall due or if being a limited company any resolution or petition to wind up the Customer shall be passed or if a receiver administrator administrative receiver or manager shall be appointed over the whole or any part of the Customer’s business or assets, the Company may in its absolute discretion, and without prejudice to any other rights suspend all future deliveries of the Goods and/or terminate the Contract without in either case any liability on its part and in addition the Company shall be entitled to exercise all of its rights under the Conditions.

No assignment

16.1 The Customer shall not assign his rights or liabilities under a Contract made subject to the Conditions.

No Set off

17.1 The Customer may not withhold payment of any monies due to the Company by reason of any right of set off or counterclaim which the Customer may have or allege to have or for any reason whatsoever.

Waiver

18.1 No waiver or forbearance by the Company to enforce a term of the Contract shall not prevent the subsequent enforcement of that or any other term of the Contract.

Third party rights

19.1 The provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract or the Conditions and a person who is not a party to the Contract or the Conditions shall have no right under the Act to enforce any term of the Contract or the Conditions.

Proper Law

20.1 The Conditions shall be governed by and construed in accordance with the Law of England and Wales and all disputes shall be subject to the exclusive jurisdiction of the courts of England and Wales.

COMPANY WEBSITE

21.1 The Company will provide the customer with an individual password to access the Company website. It is the sole responsibility of the Customer to keep this password secure. The Company will accept no responsibility for the misuse of the password and the Customer accepts full liability for orders placed under their password.
21.2 Orders placed on the website are governed by these Terms and Conditions and the Customer's normal payment terms and our normal conditions and returns procedures will apply.
21.3 The Customer is responsible for the accuracy of their orders and the Company will accept no liability for incorrect orders.
21.4 All rights in the designs and information on the Company website are owned by The Company. The Customer may only reproduce or print the material for the purpose of ordering goods from the Company. Any other use or copying of this site is prohibited without express written consent.
21.5 The Company reserves the right to change, suspend or withdraw any part of the website. Access may be denied at the sole discretion of the Company to any Customer who breaches its Terms and Conditions.
21.6 This website and its contents are provided to the Customer on an "as is" and "as available" basis. The Company does not make and expressly disclaims to the fullest extent permitted by law any and all representations or warranties of any kind with respect to this website and its contents including without limitation its completeness, accuracy, fitness or suitability for any purpose or freedom from viruses. The Company, its directors, employees and other agents shall not be liable for damages of any kind including without limitation, direct, indirect, special or consequential damages, loss of income or profits, loss of or corruption of data, loss of or damage to property or claims of third parties, arising out of or in connection with your use of this website.

SEVERANCE

22.1 If any clause or sub-clause of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other clauses or sub-clauses and the remainder of the provisions in question shall not be affected thereby.

SPECIFICATIONS

23.1 The Company shall not be under any liability in respect of specifications, illustrations or other matter in relation to goods contained in any material such as brochures, price lists or trade publications, descriptive or advertising matter or delivery notes other than in respect of specifications expressly set out in the Company's acknowledgement of order.

MISCELLANEOUS

24.1 Should a change in name or Customer company number occur then liability will remain with the Company originating that order unless and until a change in the status, name or Customer company number has been notified and approved in writing by an authorised representative of the Company.
24.2 The Customer shall not assign or delegate any duties hereunder.
24.3 The Company may subcontract any or all of its obligations hereunder without the prior consent of the Customer.
24.4 The law applicable to this contract is English law and the Customer and the Company hereby submit to the exclusive jurisdiction of the Courts of England and Wales. 15.5 As a data controller under the provisions of the DATA PROTECTION ACT 1998 Certikin International Limited reserves the right to utilise the services of Credit Reference Agencies including making enquiries about companies' financial affairs and their principal directors. Information obtained in this manner will be recorded and such records will be made available to credit reference agencies for the purpose of assessing applications for credit and the prevention of fraud.