In this document the following words shall have the following meanings:
* 1.1 "Buyer" means the organisation or person who buys Goods from the Seller;
* 1.2 "Goods" means the articles to be supplied to the Buyer by the Seller;
* 1.3 "Intellectual Property Rights" means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property wherever in the world enforceable;
* 1.4 "List Price" means the list of prices of the Goods maintained by the Seller as amended from time to time;
* 1.5 "Seller" means Mogo Direct Limited.
* 2.1 These Terms and Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions referred to, offered or relied on by the Buyer whether in negotiation or at any stage in the dealings between the parties, including any standard or printed terms tendered by the Buyer, unless the Buyer specifically states in writing, separately from such terms, that it wishes such terms to apply and this has been acknowledged by the Seller in writing.
* 2.2 Any variation to these Terms and Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.
3 PRICE AND PAYMENT
* 3.1 The price shall be that in the Seller’s current List Price, or such other price as the parties may agree in writing. The price is exclusive of VAT or any other applicable costs. Carriage shall be paid for by the Seller unless otherwise stated in writing.
* 3.2 Payment of the price and VAT and any other applicable costs shall be due by Proforma issued by the Seller or unless agreed by the Seller, strictly within 30 days of the date of receipt of the invoice supplied by the Seller.
* 3.3 The Seller shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 2% per annum above the base rate of Barclays Bank Plc.
* 3.4 If payment of the price or any part thereof is not made by the due date, the Seller shall be entitled to:
* 3.4.1 require payment in advance of delivery in relation to any Goods not previously delivered;
* 3.4.2 refuse to make delivery of any undelivered Goods whether ordered under the contract or not and without incurring any liability whatever to the Buyer for non-delivery or any delay in delivery;
* 3.4.3 terminate the contract.
4 PRICE MATCH PROMISE TERMS
The price has to apply to an identical product in terms of make, model, size or colour. We don't match special prices only available to certain customers – such as negotiated prices or prices for groups like account holders or club members.
Service Conditions: This means we compare how we sell the product to how it is sold by the competitor to ensure it's comparable. We particularly look at stock availability, delivery charges and guarantee periods.
Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering into the contract.
Where a sample of the Goods is shown to and inspected by the Buyer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Buyer to judge for itself the quality of the bulk, and not so as to constitute a sale by sample.
* 7.1 Unless otherwise agreed in writing, delivery of the Goods shall take place at the address specified by the Buyer on the date specified by the Seller. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. Please note: All deliveries are to ground floor areas only. Assistance with offloading must be provided by the customer.
* 7.2 The date of delivery specified by the Seller is an estimate only. Time for delivery shall not be of the essence of the contract.
* 7.3 If the Seller is unable to deliver the Goods for reasons beyond its control, then the Seller shall be entitled to place the Goods in storage until such times as delivery may be effected and the Buyer shall be liable for any expense associated with such storage.
* 7.4 The Buyer shall be entitled to replacement Goods where the Goods have been damaged during transportation. The Buyer must notify the Seller of the damage within 24 hours of delivery.
Risk in the Goods shall pass to the Buyer at the moment the Goods are dispatched from the Seller's premises. Where the Buyer chooses to collect the Goods itself, risk will pass when the Goods are entrusted to it or set aside for its collection, whichever happens first.
Title in the Goods shall not pass to the Buyer until the Seller has been paid in full for the Goods.
* 10.1 Where the Goods have been manufactured by the Seller and are found to be defective, the Seller shall repair, or in its sole discretion, replace defective Goods free of charge within a minimum of 1 year (and up to 10 where stated) from the date of delivery, subject to the following conditions:
* 10.1.1 the Buyer notifying the Seller in writing immediately upon the defect becoming apparent;
* 10.1.2 the defect being due to the faulty design, materials or workmanship of the Seller.
* 10.2 For the avoidance of doubt, defects will not be regarded as having arisen solely from the Seller’s faulty design, workmanship or materials in any of the following circumstances:
* 10.2.1 where such defects arise from any drawing, design or specification supplied by the Buyer; or
* 10.2.2 where such defects arise from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller's instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller's approval.
* 10.3 Any repaired or replaced Goods shall be redelivered by the Seller free of charge to the original point of delivery but otherwise in accordance with and subject to these Conditions.
* 10.4 Alternatively to Condition 9.1.1 the Seller shall be entitled at its absolute discretion to refund the price of the defective Goods in the event that such price shall already have been paid by the Buyer to the Seller or if such price has not been paid to relieve the Buyer of all obligation to pay the sum by the issue of a credit note in favour of the Buyer in the amount of such price.
* 10.5 The Buyer agrees to insure itself against loss and damage arising in the circumstances identified in Condition 11.1.2.
* 10.6 Any Goods to be repaired or replaced shall be returned to the Seller at the Buyer’s expense, if so requested by the Seller.
* 10.7 Where the Goods have been manufactured and supplied to the Seller by a third party, any warranty granted to the Seller in respect of the Goods shall be passed on to the Buyer.
* 10.8 The Seller shall be entitled in its absolute discretion to refund the price of the defective Goods in the event that such price has already been paid.
* 10.9 The remedies contained in this Clause are without prejudice to the other Terms and Conditions herein, including, but without limitation, Clauses 10 and 11 below.
* 10.10 Without prejudice to your statutory rights, Goods may only be returned if they are unused, unassembled, in their original packaging and in a resalable condition. Goods to be returned will be collected by us or our agents. Mogo Direct reserves the right to charge a 25% restocking charge plus £29.95+VAT (£35.95) carriage charge for items returned when orders were placed in error or not wanted. This will be deducted from any refund given. Goods to be returned will be kept safe and secure until such time as they are collected by us. Any damage to the Goods will be deducted from any refund given in addition to the minimum handling fee (if applicable) referred to above. We will refund the price of the Goods (if a refund is applicable) to you less any deductions in terms of the above clause once the Goods have been examined and within 30 days of their collection from you by Mogo Direct.
* 11.1 No liability of any nature shall be incurred or accepted by the Seller in respect of any representation made by the Seller, or on its behalf, to the Buyer, or to any party acting on its behalf, prior to the making of this contract where such representations were made or given in relation to:
* 11.1.1 the correspondence of the Goods with any description;
* 11.1.2 the quality of the Goods; or
* 11.1.3 the fitness of the Goods for any purpose whatsoever.
* 11.2 No liability of any nature shall be accepted by the Seller to the Buyer in respect of any express term of this contract where such term relates in any way to:
* 11.2.1 the correspondence of the Goods with any description;
* 11.2.2 the quality of the Goods; or
* 11.2.3 the fitness of the Goods for any purpose whatsoever.
* 11.3 All implied terms, conditions or warranties as to the correspondence of the Goods to any description or the satisfactory quality of the Goods or the fitness of the Goods for any purpose whatsoever (whether made known to the Seller or not) are hereby excluded from the contract.
12 LIMITATION OF LIABILITY
* 12.1 Where any court or arbitrator determines that any part of Clause 10 above is, for whatever reason, unenforceable, the Seller shall be liable for all loss or damage suffered by the Buyer but in an amount not exceeding the contract price.
* 12.2 Nothing contained in these Terms and Conditions shall be construed so as to limit or exclude the liability of the Seller for death or personal injury as a result of the Seller’s negligence or that of its employees or agents.
13 INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Seller, and the Buyer shall do all that is reasonably necessary to ensure that such rights vest in the Seller by the execution of appropriate instruments or the making of agreements with third parties.
14 FORCE MAJEURE
The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may, without liability on its part, terminate the contract.
15 RELATIONSHIP OF PARTIES
Nothing contained in these Terms and Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms and Conditions shall be deemed to construe either of the parties as the agent of the other.
16 ASSIGNMENT AND SUB-CONTRACTING
The contract between the Buyer and Seller for the sale of Goods shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Buyer, without the prior written consent of the Seller.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
19 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.