1.1 “Bespoke Goods” – made to measure, custom made, bespoke Goods ordered to the Buyers specification.
1.2 “Buyer” – the person who buys or agrees to buy goods from the seller.
1.3 “Seller” – John Moncrieff Ltd, a company incorporated under the Companies Act, registered in Scotland, Company Number 2909212, registered address at Unit 11, Clashburn Road, Bridgend Industrial Estate, Kinross, Perthshire, KY13 8GB.
1.4 “Conditions” – terms and conditions set out in this document, including any amendments in accordance with clause 2.6.
1.5 “Goods” – all goods and services that the Buyer agrees to buy from the Seller.
1.6 “Contract” – the contract between the Seller and the Buyer for the sale or purchase of goods in accordance with these conditions.
1.7 “Quality & Trading Conditions” – the Seller’s quality and trading conditions applicable to online and offline retailers as applicable, set out on this document.
1.8 “Third Party Delivery” – process where the Seller delivers the Goods on the Buyers behalf to a Third Party, elected by the Buyer.
2. Basis of Contract
2.1 No order, made by the Buyer is to be deemed to be accepted until the Seller has formally acknowledged the order (verbally or in writing) at this point the order will be created. Any order thereafter cannot be cancelled, or part cancelled without the Seller’s written permission.
2.2 Orders will only be accepted under these conditions; the seller is not bound by any other terms, including any implied or written on the Buyers order form.
2.3 Quotations are given by the Seller are not offers. If accepted by the customer, the quotation will be treated as an offer that the seller may accept in accordance with clause 2.1. Quotations are valid for 30 days.
2.4 This document and any Order Acknowledgement will represent the terms of the entire agreement between the Seller and the Buyer. Unless specifically agreed by the Sellers Director.
2.5 When entering this contract the Buyer agrees that any samples, images, drawings, advertising issued, descriptions and illustrations published by the Seller (including but not limited to a catalogue, emailed, online) are only representations and are published for the sole purpose of giving and approximate idea of the goods. They shall not be incorporated into the contract or any other contract between the Seller and the Buyer for the sale of the goods.
2.6 The Seller reserves the right to vary any terms of these conditions. Any variations will be effective from 30 days of either (whichever is earlier):
3.1 The Seller will invoice the Buyer the price of the Goods, plus any extra costs of insurances, design services, packaging, storage and packaging at the time of order. Unless the Buyer has an authorised “Credit Account”, then invoice to be settled in full with the funds cleared within 30 days following the Due Date (date on the invoice).
3.2 Time of payment will be vital
3.3 If the Buyer fails to pay the invoice in full by the Due Date, without effecting other rights, then the Seller is entitled to:
3.3.1 Charge interest at a rate of 8.5% per annum, accruing on a daily basis from the due date, until the overdue balance is paid in full.
3.3.2 Add any fees to the price of the Goods incurred by the Seller in collecting outstanding payments.
3.3.3 Suspend any further deliveries of Goods under any contract, without notice to the Buyer, until payment has been received
3.3.4 Discontinue any further deliveries of Goods under any contract, without notice to the Buyer, if the circumstances permit.
3.4 The Seller reserves the right:
3.4.1 In relation to any new Buyer, request the Buyer to provide two trade references to the Seller.
3.4.2 To raise a Pro-Forma Invoice relating to any order and the Buyer acknowledges that Goods will only be delivered when the Seller receives the payment in full and funds cleared.
3.4.3 To refuse credit terms for any reason to a Buyer.
3.5 No accepted order can be cancelled without the Sellers permission.
3.5.1 If permission granted the Seller reserves the right to charge a handling fee of up to 30% of the total order value.
3.6 Regarding Goods, the Seller has a right to reject any order for Goods for less than the minimum order quantities for any Bespoke Goods.
4. Prices
4.1 The price of the Goods charged by the Seller to the Buyer will be the price set out in the Order Acknowledgment and shall replace all previous prices quoted by the Seller.
4.2 The Seller will endeavour to deliver the prices quoted, however the Seller reserves the right to contact the Buyer at anytime prior to dispatch to increase the price of the Goods, to reflect any increase in the costs of the Goods due to:
4.2.1 Any means out with the Sellers control (including but not limited to: exchange rates, increased in taxes, labour costs, material costs and manufacturing costs).
4.2.2 Requests made by the Buyer to change order details (including but not limited to: delivery date(s), quantities, Goods).
4.2.3 Delays caused by the Buyer (including but not limited to: Failure of the Buyer to give the Seller adequate information or instructions).
4.3 All prices are subject to VAT and any other applicable taxes, charged in addition at the rate in force at the date of invoice.
4.4 The Buyer understands and agrees that Goods sold by the Seller are for domestic use within the UK. The Buyer assumes no responsibility for suitability for any purpose of the Goods, any statement made by the Seller will be understood to be an opinion of the salesperson in question only. The salesperson holds no understanding of the environment in which the Goods will be installed and the Buyer holds no reliance upon the option of the salesperson. The Buyer will be responsible for ensuring the products are suitable, and compatible with the voltages, wiring and installation requirements of the designated country, and will comply any regulations, before ordering.
5. Delivery
5.1 When ordering Goods, the Buyer will have the option to request a Third Party Delivery.
5.1.1 If the Buyer requests Third Party Delivery they must submit the request at time of ordering, and supply sufficient information about the Third Party to allow the Seller to agree and to complete the request.
5.1.2 Third Party Delivery is at the sole discretion of the Seller, and may be subject to additional charges, discretion is taken on an individual basis.
5.1.3 Delivery dates and times given by the Seller to the Buyer are for guidance only.
5.1.4 The Contract will remain between the Seller and the Buyer. The Seller has no liability, duty or obligation to the Third Party. The Third Party has no rights under these conditions. The Buyer will sell Goods to its customers subject to terms and conditions which make clear that all contractual claims arising out of the sale of Goods to its customers shall be brought against the Buyer.
5.1.5 At any time and for any reason the Seller reserves the right to withdraw the option of Third Party Delivery without incurring any liability to the Buyer or any other Party.
5.2 Delivery of the Goods to the Buyer will be completed when the Seller makes the Goods available.
5.3 The Buyer acknowledges and agrees that any dates quoted by the Seller for delivery of the Goods are approximate and the time of delivery is not of the essence. The Seller accepts no liability to the Buyer or any Third Party for the compensation or damages for the delayed delivery, or any loss of any kind, however caused. To avoid doubt, this is also applies to Third Party Deliveries.
5.4 If the Buyer or Third Party fails to accept delivery of the Goods for any reason whatsoever, the Goods may be stored by the Seller at the Buyers risk and expense until Buyer accepts delivery. After 10 days of notifying the Buyer the Goods were ready to be delivered and the delivery has not been accepted by the Buyer or Third Party, the Seller may resell or dispose of the all or part of the Goods.
5.5 The Seller may deliver the Goods as part instalments, which will be invoice and paid separately. Each instalment will constitute as an individual contract. Delays or defects in an instalment will not entitle the Buyer to cancel other instalments unless accepted and agreed by the Seller. Failure to pay any invoice in relation to an instalment will entitle the Seller to the remedies outlined in clause 3.3.
6. Carriage
6.1 The Seller operates a scale of charges for carriage based on point of delivery. Different carriage charges apply to different delivery locations and types of Goods. The Seller reserves the right to change these charges from time to time.
6.2 The Seller reserves the right to charge additional fee for over night delivery if requested by the Buyer. The Seller also reserves the right to charge an additional fee if the Buyer requests delivery to an address which is not the Buyers registered address.
7. Obligations of the Buyer
7.1 The Buyer agrees they shall at all times comply with the Quality and Trading conditions and any other conditions or standards that may be required by the Seller from time to time.
7.2 The Buyer shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including but not limited to: direct, indirect or consequential losses, loss of profit, loss of reputation and any other reasonable professional costs and expenses) suffered or incurred by the Seller arising out of or in connection with any breach of the warranty contained in clause 7.1 to the extent that it is not caused by the Sellers Negligence or misconduct.
8. Quality
8.1 The Seller agrees that on delivery the Goods will:
8.1.1 Comply to all specified materials in the description;
8.1.2 Be free from material defects
8.2 If the Buyer provides full detailed notice in writing to the Seller within 5 days of delivery that the Goods, or part of the Goods, do not comply with the warranty of clause 8.1, and returns the Goods to the Sellers place of business within 10 days, at the Buyers cost and in the original packaging, quoting the order number relating to the Goods, then the seller has the option to replace all or part of the defective Goods or refund the price of the defective Goods. Subject to clause 8.5.
8.3 The Buyer accepts and agrees that the Seller shall only replace (or refund) the price for the defective Goods after a John Moncrieff Sales Representative has inspected the Goods and the original packaging.
8.4 If the Seller replaces any defective Goods, it reserves the right to charge the Buyer the price of the replacement, in accordance to these Conditions, and issue a credit to the Buyer, once the defective Goods are returned in the original packaging. If the defective Goods title had been transferred to the Buyer the title will revert back to the Seller, on date of dispatch for the returned defective Goods.
8.5 The Seller will not be liable for the Goods failure to comply with the warranty set out in clause 8.1 if:
8.5.1 The buyer continues to use such Goods after giving notice as stated in clause 8.2;
8.5.2 The defect is created due to the Buyer or Third Parties failure to follow written or verbal instructions, including but not limited to: installation, storage, use or maintenance of Goods. In the case of no instructions then Good Trade Practice;
8.5.3 The Buyer alters or repairs such Goods without the written consent of the Seller;
8.5.4 The defect arises as a result of fair wear and tear, wilful damage, negligence or subnormal storage or working conditions.
8.6 The Buyer understands and agrees that the packaging in which the Goods are supplied in are only suitable for delivery from the Seller to the Buyer. The Seller is not liable for any damages, breakages or lost items during any onward deliveries, after goods have been delivered to the Buyer. If the Buyer does not notify the Seller of any defects within the claims period set out in clause 8.2 then the Seller shall not be liable to the Buyer for any Goods.
8.7 Any issues, requests or queries with the delivery note, must be made within 3 days from receipt. After 3 days, Seller will assume delivery notes are correct and payment will not be delayed.
8.8 The seller will not accept returned Goods without prior written agreement. Goods returned without agreement from the Seller, will not be credited and the Seller will not be liable for the costs involved. The Seller may charge a handling and testing fee of 30%. If the Buyer wishes to return good stock to the Seller, then it must be returned in original packaging and in a sellable condition. If it is not then the Seller can, at its discretion, return the Goods to the Buyer and charge any additional costs (including, but not limited to) packaging, insurance and carriage.
8.9 The Buyer accepts that the Seller is unable to resell Bespoke Goods and the Buyer shall not have any right to return Bespoke Goods, and no right to cancel a Contract in relation to Bespoke Goods. Any such goods will be replaced; repaired; or refunded in accordance to clause 8, as long as the Goods were an error of supply, including manufactured to the wrong size or deemed to be faulty by the Supplier in breach of the warranty
set out in clause 8.1. The specification and measurements are those confirmed by the Buyer at the time of order and it is the Buyers responsibility that measurements are correct and the Goods are suitable for the purpose intended. No replacements; repairs; refunds will be issued by the Seller if the Buyer has made an error during order.
8.10 These conditions apply to any repaired or replaced Goods.
8.11 The Seller will accept no liability to the Buyer in relation to the Goods failure to comply with the warranty set out in clause 8.1, except as provided in this clause 8.
8.12 Warranties, conditions and other terms, unless expressed or implied by common law, conduct custom, or otherwise, are excluded from the Contract. Except those set out in these Conditions.
9. Title and Risk
9.1 The risk in the Goods will pass to the Buyer on completion of delivery.
9.2 The tile of the Goods shall not pass to the Buyer until the Seller has received full payment for:
9.2.1 The Goods;
9.2.2 Any other Goods or services that the Seller has supplies to the Buyer under any contract
9.3 Until the title of the Goods has been passed to the Buyer, the Buyer will:
9.3.1 Hold the goods on a fiduciary basis as the Sellers bailee;
9.3.2 Store the Goods separate to any other Goods by the Buyer to ensure they remain as identifiable as the Sellers property, easily;
9.3.3 Do not remove, deface or obscure the identity mark or packaging relating to the Goods;
9.3.4 Ensure the Goods are maintained in good condition and insured against all risks for their full price from date of delivery;
9.3.5 Notify the Seller immediately if the Goods become subject to any of the events identified in clause 10.3.
9.3.6 The Buyer will not be entitled to pledge or in any way charge by way of security for any indebtedness for the Goods which remain the Sellers property. If the Buyer does, any money owning by the Buyer to the Seller becomes due and payable.
10. Breach and Insolvency
10.1 If the Buyer:
10.1.1 Is in any breach of any of the terms of these conditions;
10.1.2 Becomes subject to any of the events listed in clause 10.2, or the Seller reasonably believed that the Buyer is about to become subject to any of them and notifies the Buyer accordingly,
10.2 Then, without limiting any other right or remedy available to the Buyer, the Seller is entitled to:
10.2.1 Cancel or suspend all further deliveries under the/or any contract between the Buyer and the Seller without incurring any liability to the Buyer
10.2.2 Immediate payment of all outstanding monies in respect to the Goods delivered to the Buyer notwithstanding any agreement between the parties;
10.2.3 Exercise any of its rights pursuant to clause 9.
10.3 For the purpose of clause 10.1, the relevant events are if the Buyer suspends, threatens to suspend, payment of its debts or substantially the whole business; goes into liquidation; becomes insolvent; has an administrator, receiver or any similar officer appointed in respect to all or part of its undertaking (or has been filled with a court to appoint such officer); or any event with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent to or similar to any aforementioned events.
11. Product Information
11.1 The Seller will ensure that all information contained in the Sellers Product information or descriptions (including, but not limited to) on the website is correct at time of publishing. The Seller will have no liability to the Buyer or Third Party for any damage, loss or expense resulting from any error or omission contained in the Sellers descriptions Goods supplied may vary in detail from the illustrations, drawings and descriptions, as stated in clause 2.5, are approximate and for guidance only, as a result of improvements and modifications. Colour finishes will be maintained as accurate as possible, colour matches are not guaranteed, and the Seller will not be held liable for variations.
11.2 The Seller reserves the right to change or amend specifications to the Goods without prior notice. Notwithstanding that any sample may have been produced or supplies by the Seller all sales are by description and strictly not by sample.
12. Liability
12.1 Nothing in these conditions shall limit of exclude the Sellers liability for:
12.1.1 Death of personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
12.1.2 Fraud or fraudulent misrepresentation;
12.1.3 Breach of the terms implied by section 12 of the Sale of Goods Act – 1979;
12.1.4 Defective Goods under the Consumer Protection Act 1987
12.2 Subject to clause 12.1:
12.2.1 The Seller shall not be liable to the Buyer, for any (including, but not limited to) loss of profit, loss of business, loss of opportunity, loss of goodwill, or any other loss howsoever arising under or in connection with the contract;
12.2.2 The Sellers total liability to the Buyer in respect of all other losses arising under or in connection with the Contract shall not exceed the price paid or payable for the Goods.
12.3 The Seller will not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to preform any of the Sellers obligations in relation to the Good, if the delay or failure was due to the Buyers failure to provide the Seller with adequate instructions for delivery or otherwise that are relevant to the supply of Goods.
13. Force Majeure
13.1 The Seller will not be liable to the Buyer as a result of any delay or failure to perform its obligations under the Contract if and to the extent such delay or failure is caused by an event or circumstance which is beyond the reasonable control of the seller which by its nature could not have been foreseen by the Seller, or if it could have been foreseen, war unavoidable. For the purpose of this clause this will include, but not be limited to an act of God, war, strikes, industrial action, difficulties obtaining labour or arts, government or other restrictions or regulations or other event beyond reasonable control of the Seller.
14. Samples
14.1 The Buyer agrees that the Buyer shall pay for any samples provided by the Seller at the price set out in the Sellers published current price list at date of dispatch. The Buyer is liable for all carriage charges, including the cost to return.
14.2 Credit Note will only be issued if they are:
14.2.1 Returned within 28 days of the date of dispatch in the same condition as they were dispatched
14.2.2 In the original packaging
14.3 The Buyer agrees that when a sample of Goods has been provided by the Seller, it shall not constitute a sale by sample, as stated in clause 11.2.
15. General
15.1 Law and Jurisdiction:
15.1.1 The contract between John Moncrieff Limited and the customer is governed by the Law of Scotland. These General Conditions contain the entire agreement of the parties. These General Conditions may not be modified or varied except with the written agreement of the parties.
15.2 Rights of Third Parties:
15.2.1 For the purpose of the Contract (Rights of Third Parties) Act 1999 and notwithstanding any other provision of the Contract this Contract is not intended and does not give any person who is not a party to it any right to enforce any of its provisions.
15.3 No Agency:
15.3.1 Nothing in these Conditions will constitute or imply any partnership, joint venture agency fiduciary relationship or any other relationship between parties, other than the contractual relationship expressly provided in the Contract or as set out in these Conditions.
15.4. Whilst we endeavour to keep our website as up to date as possible, there may be occasions where an item shown on the website as in stock is not physically in stock. In such circumstances we will advise you how long there will be for delivery, or we can offer you the option of a full refund or an alternative product.
