These terms and conditions are the contract between you and us, Hardings Kitchen ltd. By visiting or using Our Website, you agree to be bound by them.
We are Harding's Kitchen Ltd, a company registered in Ireland, number Our address is 62 St Columbas Road, Greenhills, Dublin 12.
You are: Anyone who uses Our Website.
Please read this agreement carefully and save it. If you do not agree with it, you should leave Our Website immediately.
The terms and conditions:
In this agreement:
“Consumer” - means any individual who, in connection with this agreement, is acting for a purpose which is outside his business.
“Content” - means the textual, visual or audio content that is encountered on Our Website. It may include, among other things: text, images, sounds, videos and animations.
“Extra Work” - means all of the work we do and materials we buy to prepare or produce Specified Goods.
“Goods” - means any of the goods we offer for sale on Our Website, or, if the context requires, goods we sell to you. It includes Specified Goods.
"Intellectual Property" - means intellectual property of every sort, whether or not registered or registrable in any country, including intellectual property of kinds coming into existence after today; and including, among others, designs, copyrights, software, discoveries, know-how, together with all rights which are derived from those rights.
"Post" - means display, exhibit, publish, distribute, transmit and/or disclose information, Content and/or other material on to Our Website, and the phrases "Posted" and "Posting" shall be interpreted accordingly.
“Specified Goods” - means Goods which have been subject to work or process to your specific order.
“Our Website” - means any website of ours, and includes all web pages controlled by us.
Unless the context clearly requires otherwise, the interpretation of this agreement shall be subject to the matters listed below.
2.1. a reference to one gender shall include any or all genders and a reference to the singular may be interpreted where appropriate as a reference to the plural and vice versa.
2.2. a reference to a person includes a human individual, a corporate entity and any organisation which is managed or controlled as a unit.
2.3. the headings to the paragraphs of this agreement are inserted for convenience only and do not affect the interpretation.
2.4. in the context of permission, “may not” in connection with an action of yours, means “must not”.
2.5. any agreement by either party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing.
2.6. a reference to an act or regulation includes new law of substantially the same intent as the act or regulation referred to.
2.7. in any indemnity, a reference to costs or expenses shall be construed as including the estimated cost of management time of the indemnified party, [such cost calculated €100 per hour].
2.8. these terms and conditions apply to all supplies of Goods by us to you. They prevail over any terms proposed by you.
3.1. This agreement contains the entire agreement between the parties and supersedes all previous agreements and understandings between the parties.
3.2. Each party acknowledges that, in entering into this agreement, he does not rely on any representation, warranty, information or document or other term not forming part of this agreement.
3.3. If you use Our Website in any way and make an order on behalf of another person you warrant that you have full authority to do so and you accept personal responsibility for every act or omission by you.
3.4. [Because we rely on our suppliers, dealing with fresh produce, our menus are subject to slight changes if certain produce is unavailable].
3.5. We may change these terms from time to time. The terms that apply to you are those posted here on Our Website on the day you order Goods. We advise you to print a copy for your records.
3.6. The price of Goods may be changed by us at any time. We will never change a price so as to affect the price charged to you at the time when you buy those Goods.
3.7. If in future, you buy Goods from us under any arrangement which does not involve your payment via Our Website, these terms still apply so far as they can be applied.
4.1. This paragraph applies to Goods which you buy from us as advertised, without change to your specific requirements.
4.2. Your order is an offer to buy from us.
AND EITHER
4.3. Nothing that we do or say will amount to any acceptance of your offer until we actually dispatch the Goods to you. [At any point up until then, we may decline to supply the Goods to you without giving any reason].
OR
4.4. We shall accept your order by [e-mail confirmation]. That is when our contract is made. [Our message will also confirm details of your purchase and tell you when we shall despatch your order].
AND
4.5. At any time before the Goods are despatched, we may decline to supply the Goods to you without giving any reason.
4.6. If we do not have all of the Goods you order in stock, we will offer you alternatives. If this happens you may:
4.6.1 accept the alternatives we offer;
4.6.2 cancel all or part of your order.
5.1. This paragraph applies to Specified Goods.
5.2. Our contract to supply Specified Goods is a contract for both the supply of Goods and the Extra Work you have asked us to do.
5.3. Nothing said or done by us is an acceptance of an order until we confirm clear acceptance in writing, giving you details of our understanding of your exact requirements. [At any point up until then, we may decline your order without giving any reason]. From that time, we are both bound to these contract terms.
5.4. If you wish to make any change to the specification of the Extra Work, you must pay us the sum we estimate that the change will cost us, based on our then current charging rates.
5.5. If you terminate this agreement before the Specified Goods are complete, you agree to pay us for all of the Extra Work to the date of cancellation by you. In addition you will pay us a mark-up of 30% of the total cost of Extra Work.
6.1. Prices of Goods are shown on Our Website [and in our showroom].
and
6.2. Prices for Specified Goods are available through telephone or email.
6.3. It is possible that the price may have increased from that posted on Our Website. If that happens, we will not dispatch the Goods until you have confirmed that you wish to buy at the new price.
6.4. Prices include value added tax. If you show by your delivery address that you reside outside EU, VAT will be deducted at the payment point.
7.1. [We will split an order over three delivery days. We require the full price of your order before we will send any part of it.
7.2. Bank charges by the receiving bank on payments to us will be borne by us. All other charges relating to payment in a currency other than Euro will be borne by you.
7.3. If, by mistake, we have under-priced Goods, we will not be liable to supply those Goods to you at the stated price, provided that we notify you before we dispatch it to you.
7.4. The price of the Goods does not include the delivery charge which will be charged at the rates applicable at the date you place your order and which will be displayed on a page of Our Website before we ask you to pay.
7.5. If we owe you money (for this or any other reason), we will credit your credit or debit card as soon as reasonably practicable but in any event no later than [14] days from the date when we accept that repayment is due.
We take care to make Our Website safe for you to use.
8.1. Card payments are not processed through pages controlled by us. We use one or more online payment service providers who will encrypt your card or bank account details in a secure environment.
8.2. If you have asked us to remember your credit card details in readiness for your next purchase or subscription, we will securely store your payment details on our systems. These details will be fully encrypted and only used to process your automatic monthly payments or other transactions which you have initiated.
Please note that this paragraph does not apply to any Specified Goods you order through Our Website.
This paragraph applies if you buy as a consumer as defined in the European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013. Provided the Regulations apply to the transaction concerned, then the following terms apply to the contract.
9.1. We now inform you that information relating to all aspects of our Goods is not in this document but in our marketing material, whether that is in the medium of Our Website or in hard copy.
9.2. The following rules apply to cancellation of your order:
9.2.1 If you have ordered Goods, but not received them, you may cancel your order without giving a reason, at any time within 14 days of your order. You will have no obligation and we will return your money.
9.2.2 If you have ordered Goods, and received them, you may cancel your order at any time within 14 days of the date you received them. You must tell us that you wish to cancel. You must also send the Goods back to us within that same 14 day period.
9.2.3 We will return your money subject to the following conditions:
9.2.3.1 we receive the Goods in a condition in which we can re-sell them at full price, in new condition, with labels and packaging intact.
9.2.3.2 you comply with our procedure for returns and refunds. We cannot return your money unless we know who sent them.
9.3. The option to cancel your order is not available:
9.3.1 if you purchase sealed goods which relate to health or hygiene, and they become unsealed after delivery, or cannot be re-sold for some other reason;
9.3.2 if they are a hard medium for a product in soft copy, which comes to you sealed and is returned to us unsealed.
9.3.3 If the Goods are somehow mixed with other goods so that we cannot identify or easily separate them.
9.4. You are responsible for the cost of returning the Goods. We have no obligation to refund to you, your cost of re-packing and returning the Goods.
9.5. In any of the above scenarios, we will return your money within 14 days.
10.1. We will repair or replace Goods which show a defect. If you claim that the item is defective, the following conditions apply:
10.1.1 the defect must be reported to us within [four] weeks of becoming apparent;
10.1.2 the defect results only from faulty design or manufacture;
10.1.3 you have returned the defective Goods or parts to us if we have so requested.
10.2. If we agree that we are liable, we will refund the cost of return carriage and will repair or replace the Goods free of charge.
10.3. If we repair or replace the Goods, you have no additional claim against us either under this agreement or by statute or common law, in respect of the defect.
11.1. Goods are delivered within [14 days from the day you place an order to purchase the Goods.
11.2. Delivery of Goods will be made by the carrier to the address stipulated in your order. You must ensure that someone is present to accept delivery.
11.3. If we are not able to deliver your Goods within [14] days of the date of your order, we shall notify you by e-mail to arrange another date for delivery.
11.4. We may deliver the Goods in instalments if they are not all available at the same time for delivery.
11.5. Goods are sent at our risk until signed for by you or by any other person at the address you have given to us [unless you have instructed us in the order process that you wish us to leave the Goods without an acceptance signature (for example: “leave it in the garage”)].
11.6. [Goods are sent by refrigerated van, please refrigerate below 5 degrees celsuis and consume by the use by date. We will send you a message by email to tell you when we have despatched your order.
11.7. All Goods must be signed for on delivery by an adult aged 18 years or over. If no one of that age is at the address when the delivery is attempted the Goods may be retained by the driver. When your Goods arrive it is important that you check immediately the condition and quantity. If your Goods have been damaged in transit, you must refuse the delivery and immediately contact us so that we may dispatch a replacement quickly and minimise your inconvenience.
11.8. Signing "Unchecked", "Not Checked" or similar is not acceptable.
11.9. If we agree with you to deliver on a particular day or at a particular time, we will do our best to comply. But no time given is to be treated as contractual. So we are not liable to you for any expense or inconvenience you incur on account of delayed delivery or non-delivery.
11.10. Some Goods will be delivered direct from the manufacturer who will contact you to arrange delivery. When delivery of the Goods has been arranged directly with the manufacturer, you will be subject to the manufacturer's delivery policy.
11.11. Some Goods are so large and heavy that delivery times may be slightly longer. In this case, approximate delivery dates will be given when you place your order.
11.12. Time for delivery specified on the order, if any, is an estimate only and time shall not be of the essence.
11.13. We are happy for you to pick up Goods from our shop/ showroom provided you make an appointment in advance and payment has been received into our bank.
11.14. If you pick up Goods from our premises then:
11.14.1 we will not be able to assist you in loading heavy items;
11.14.2 Goods are at your risk from the moment they are picked up by you or your Carrier from our shop / warehouse;
11.14.3 you agree that you are responsible for everything that happens after you take possession of the Goods, both on and off our premises, including damage to property of any sort, belonging to any person.
12.1. If you are not in EU (European Union) country, we have no knowledge of, and no responsibility for, the laws in your country.
12.2. You are responsible for purchasing Goods which you are lawfully able to import and for the payment of import duties and taxes of any kind levied in your country.
13.1. We shall deliver the Goods, duty and delivery paid, to your premises.
13.2. In spite of delivery having been made, title to the Goods shall not pass from us until:
13.2.1 you have paid the price in full; and
13.2.2 no other sums whatever shall be due from you to us.
13.3. Until title to the Goods passes to you, you shall hold the Goods on a fiduciary basis as bailee for us.
13.4. You must store the Goods (at no cost to us) separately from all other goods in your possession and marked in such a way that they are clearly identified as our Goods.
13.5. Despite any of the Goods remaining our property, you may sell or use the Goods in the ordinary course of your business at full market value for our account.
13.6. Any sale or dealing shall be a sale or use of our Goods by you on your own behalf, so that you deal as principal and not as agent for us.
13.7. Until title to the Goods passes from us the entire proceeds of sale of the Goods shall be held in trust for us and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as our money.
13.8. We shall be entitled to recover the price notwithstanding that property in any of the Goods has not passed from us.
13.9. If we ask you to return Goods unsold you must do so.
13.10. If, when asked, you fail to return the Goods, we may enter to your premises and repossess the Goods.
13.11. You must not pledge or in any way charge by way of security any of the Goods which are our property. Without prejudice to our other rights, if you do so, all money owing to us shall immediately become due and payable.
13.12. You must keep the Goods insured to their full value against ‘all risks' to our reasonable satisfaction until sold on by you.
13.13. If, when we ask, you fail to deliver to us a copy of your insurance policy covering risks to the Goods, all money owing by you to us shall immediately become due and payable.
13.14. While ever we have title to any of the Goods, which you have attached to or incorporated into new goods, then:
13.14.1 title to the new goods shall vest in us;
13.14.2 you shall hold such goods as bailee of and to the order of us until we have received payment in full.
13.14.3 all our rights in relation to the Goods (including our rights under this agreement) shall extend to such new goods.
These provisions apply in the event that you return any Goods to us for any reason except as a result of your cancellation under the Regulations. :
14.1. We do not accept returns unless there was a defect in the Goods at the time of purchase, or we have agreed in correspondence that you may return them.
14.2. So far as possible, Goods should be returned:
14.2.1 with both Goods and all packaging as far as possible in their original condition;
14.2.2 securely wrapped;
14.2.3 including our delivery slip or [manufacturer’s delivery slip];
14.2.4 at your risk and cost.
14.3. You must tell us by email message to [address] you that you would like to return Goods, specifying exactly what Goods and when purchased, and giving full details of the defect or other reason for return. We will then issue a returns note. If you send Goods to us without a returns note, we may not be able to identify sufficient details to enable us to attend to your complaint.
14.4. In returning faulty Goods please encloses with it a note clearly stating the fault and when it arises or arose.
14.5. If delivery was made to Irish address, you are also protected by the Sale of Goods and Supply of Services Act 1980.
14.6. If we agree that the Goods are faulty, we will:
14.6.1 refund the cost of return carriage;
14.6.2 repair or replace the Goods as we choose.
15.1. Our privacy policy is strong and precise. It complies fully with the Data Protection Act 2018 which is at [link to privacy policy].
15.2. If you Post Content to any public area of Our Website it becomes available to the public domain. We have no control over who sees it nor what anyone does with it.
15.3. [You now irrevocably authorise us to publish feedback, comments and ratings about your activity through Our Website, even though it may be defamatory or critical.]
15.4. Posting Content of any sort does not change your ownership of the copyright in it. We have no claim over it and we will not protect your rights for you.
15.5. You understand that you are personally responsible for your breach of someone else’s intellectual property rights, defamation, or any law, which may occur as a result of any Content having been Posted by you;
15.6. You accept all risk and responsibility for determining whether any Content is in the public domain and not confidential.
15.7. Please notify us of any security breach or unauthorised use of your account.
We invite you to Post Content to Our Website in several ways and for different purposes. We have to regulate your use of Our Website to protect our business and our staff, to protect other users of Our Website and to comply with the law. These provisions apply to all users of Our Website.
We do not undertake to moderate or check every item Posted, but we do protect our business vigorously. If we believe Content Posted breaches the law, we shall co-operate fully with the law enforcement authorities in whatever ways we can.
You agree that you will not use or allow anyone else to use Our Website to Post Content or undertake any activity which is or may:
16.1. be unlawful, or tend to incite another person to commit a crime;
16.2. consist in commercial audio, video or music files;
16.3. be sexually explicit or pornographic;
16.4. be likely to deceive any person or be used to impersonate any person, or to misrepresent your identity, age or affiliation with any person;
16.5. give the impression that it emanates from us or that you are connected with us or that we have endorsed you or your business;
16.6. be made on behalf of some other person, or impersonate another person;
16.7. request or collect passwords or other personal information from another user without his permission, nor Post any unnecessary personal information about yourself;
16.8. be used to sell any goods or services or for any other commercial use not intended by us, for yourself or for any other person. Examples are: sending private messages with a commercial purpose, or collecting information with the intention of passing it to a third party for his commercial use;
16.9. include anything other than words (i.e. you will not include any symbols or photographs) except for a photograph of yourself in your profile in such place as we designate;
16.10. link to any of the material specified in this paragraph;
16.11. use distribution lists that include people who have not given specific permission to be included in such distribution process;
16.12. send age-inappropriate communications or Content to anyone under the age of 18.
In connection with the restrictions set out below, we may refuse or edit or remove a Posting which does not comply with these terms.
In addition to the restrictions set out above, a Posting must not contain:
17.1. hyperlinks, other than those specifically authorised by us;
17.2. keywords or words repeated, which are irrelevant to the Content Posted.
17.3. the name, logo or trademark of any organisation other than yours.
17.4. inaccurate, false, or misleading information;
18.1. For the avoidance of doubt, this paragraph is addressed to any person who comes on Our Website for any purpose.
18.2. We are under no obligation to monitor or record the activity of any user of Our Website for any purpose, nor do we assume any responsibility to monitor or police Internet-related activities. However, we may do so without notice to you and without giving you a reason.
18.3. If you are offended by any Content, the following procedure applies:
18.4. your claim or complaint must be submitted to us in the form available on Our Website, or contain the same information as that requested in our form. It must be sent to us by post or email.
18.4.1 we shall remove the offending Content as soon as we are reasonably able;
18.4.2 after we receive notice of a claim or complaint, we shall investigate so far as we alone decide;
18.4.3 we may re-instate the Content about which you have complained or we may not.
18.5. In respect of any complaint made by you or any person on your behalf, whether using our form of complaint or not, you now irrevocably grant to us a licence to publish the complaint and all ensuing correspondence and communication, without limit.
18.6. you now agree that if any complaint is made by you frivolously or vexatiously you will repay us the cost of our investigation including legal fees, if any.
If you violate Our Website we shall take legal action against you.
You now agree that you will not, and will not allow any other person to:
19.1. modify, copy, or cause damage or unintended effect to any portion of Our Website, or any software used within it.
19.2. link to Our Website in any way that would cause the appearance or presentation of Our Website to be different from what would be seen by a user who accessed Our Website by typing the URL into a standard browser;
19.3. download any part of Our Website, without our express written consent;
19.4. collect or use any product listings, descriptions, or prices;
19.5. collect or use any information obtained from or about Our Website or the Content except as intended by this agreement;
19.6. aggregate, copy or duplicate in any manner any of the Content or information available from Our Website, other than as permitted by this agreement or as is reasonably necessary for your use of Our Website;
19.7. share with a third party any login credentials to Our Website;
19.8. Despite the above terms, we now grant a licence to you to:
19.8.1 create a hyperlink to Our Website for the purpose of promoting an interest common to both of us. You can do this without specific permission. This licence is conditional upon your not portraying us or any product or service in a false, misleading, derogatory, or otherwise offensive manner. You may not use any logo or other proprietary graphic or trademark of ours as part of the link without our express written consent.
19.8.2 you may copy the text of any page for your personal use in connection with the purpose of Our Website.
(This is the first of two options, depending on your customer base. Option one: use this option for sales to consumers anywhere in the EU. You are free to use it for all other customers if you so decide.)
20.1. The law differs from one country to another. This paragraph applies to sales throughout the EU.
20.2. All implied conditions, warranties and terms are excluded from this agreement. If in any jurisdiction an implied condition, warrant or term cannot be excluded, then this sub paragraph shall be deemed to be reduced in effect, only to the extent necessary to release that specific condition, warranty or term.
20.3. We make no representation or warranty for:
20.3.1 any implied warranty or condition as to merchantability or fitness of the Goods for a particular purpose;
20.3.2 the adequacy or appropriateness of the Goods for your purpose.
20.4. We claim no expert knowledge in any subject. We disclaim any obligation or liability to you arising directly or indirectly from information you take from Our Website.
20.5. You agree that in any circumstances when we may become liable to you, the limit of our liability is the amount you have paid us in the immediately preceding 12 month period for the Goods concerned.
20.6. We shall not be liable to you for any loss or expense which is:
20.6.1 indirect or consequential loss; or
20.6.2 economic loss or other loss of turnover, profits, business or goodwill, even if such loss was reasonably foreseeable or we knew you might incur it.
20.7. This paragraph (and any other paragraph which excludes or restricts our liability) applies to our directors, officers, employees, subcontractors, agents and affiliated companies as well as to us.
20.8. If you become aware of any breach of any term of this agreement by any person, please tell us by [state action required]. We welcome your input [but do not guarantee to agree with your judgement.]
(Option two: use this option (to the end of this paragraph) to sell to anyone except EU consumers. It is more favourable to you.)
20.9. The law differs from one country to another. This paragraph applies so far as the applicable law allows.
20.10. All implied conditions, warranties and terms are excluded from this agreement. If in any jurisdiction an implied condition, warrant or term cannot be excluded, then this sub paragraph shall be deemed to be reduced in effect, only to the extent necessary to release that specific condition, warranty or term.
20.11. We make no representation or warranty for:
20.11.1 the quality of the Goods;
20.11.2 any implied warranty or condition as to merchantability or fitness of the Goods for a particular purpose;
20.11.3 the correspondence of the Goods with any description;
20.11.4 the adequacy or appropriateness of the Goods for your purpose.
20.12. We claim no expert knowledge in any subject. We disclaim any obligation or liability to you arising directly or indirectly from information you take from Our Website.
20.13. We shall not be liable to you for any loss or expense arising out of or in connection with your use of Our Website, which is indirect or consequential loss, or economic loss or other loss of turnover, profits, business or goodwill. This applies whether in an action of contract, negligence or otherwise, even if such loss was reasonably foreseeable or we knew you might incur it.
20.14. We make no representation or warranty and accept no responsibility in law for:
20.14.1 accuracy of any Content or the impression or effect it gives;
20.14.2 delivery of Content, material or any message;
20.14.3 privacy of any transmission;
20.14.4 any act or omission of any person or the identity of any person who introduces himself to you through Our Website;
20.14.5 any aspect or characteristic of any goods or services advertised on Our Website;
20.15. Our Website includes Content Posted by third parties. We are not responsible for any such Content. If you come across any Content which offends you, please contact us via the “Contact us” page on Our Website.
20.16. We will do all we can to maintain access to Our Website, but it may be necessary for us to suspend all or part of our service for repairs, maintenance or other good reasons. We may do so without telling you first.
20.17. You agree that in any circumstances when we may become liable to you, the limit of our liability is the amount you have paid us in the immediately preceding 12 month period for the [Products / Service] concerned.
OR
20.18. Our total liability under this agreement, however it arises, shall not exceed the sum of € [10,000]. This applies whether your case is based on contract, tort or any other basis in law.
20.19. This paragraph (and any other paragraph which excludes or restricts our liability or provides an indemnity to us) applies to our directors, officers, employees, subcontractors, agents and affiliated companies, as well as to us.
20.20. If you become aware of any breach of any term of this agreement by any person, please tell us by [state action required]. We welcome your input [but do not guarantee to agree with your judgement.]
20.21. Nothing in this agreement excludes liability for a party's fraud.
21. Your account with us
21.1. You agree that you have provided, and will continue to provide accurate, up to date, and complete information about yourself. We need this information to provide you with the Goods.
21.2. If you use the website, you are responsible for maintaining the confidentiality of your account and password and for preventing any unauthorised person from using your computer.
21.3. You agree to accept responsibility for all activities that occur under your account or password. You should tell us immediately if you believe some person has accessed your account without your authority and also log in to your account and change your password.
You agree to indemnify us against all costs, claims and expense arising directly or indirectly from:
22.1. your failure to comply with the law of any country;
22.2. your breach of this agreement;
22.3. any act, neglect or default by any agent, employee, licensee or customer of yours;
22.4. a contractual claim arising from your use of the Goods;
22.5. a breach of the intellectual property rights of any person.
23.1. Copyright works owned by you or a third party are unaffected by this agreement.
23.2. The Intellectual Property in all work we do in the process leading to completion of the Specified Goods and in the completed Specified Goods belongs to us.
23.3. If you change or create derivative versions of the Specified Goods, the Intellectual Property in those changed or derived versions also belongs to us.
23.4. We now grant an exclusive license to you to use the Intellectual Property in the Specified Goods for a period of 99 years. You may not assign this licence except by way of sale or transfer of the Specified Goods.
In this paragraph the term “ADR Provider” means an approved body under the European Union (Alternative Dispute Resolution for Consumer Disputes) Regulations 2015.
The following terms apply in the event of a dispute between the parties:
24.1. If you are not happy with our services or have any complaint then you must tell us by email message to [email address or an updated address which you will find on Our Website].
24.2. Detailed information about our complaint handling procedure is at [enter link (if any)].
24.3. If a dispute is not settled as set out above, we hope you will agree to attempt to resolve it by engaging in good faith with us in a process of mediation or arbitration.
24.4. We can propose an ADR Provider or will listen to your proposal. If you are in any way concerned, you should read the regulations at: http://ec.europa.eu/consumers/odr/.
25.1. When we communicate with you we do so by email. You agree that email communications are contractually binding in the same way as properly signed and dated paper sent by post.
25.2. Where we provide goods or services without specific charge to you, then it (or they) is deemed to be provided free of charge, and not to be associated with any other goods or service for which a charge is made. Accordingly, there is neither contractual nor other obligation upon us in respect of those goods or that service.
25.3. If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.
25.4. The rights and obligations of the parties set out in this agreement shall pass to any permitted successor in title.
25.5. Any obligation in this agreement intended to continue to have effect after termination or completion shall so continue.
25.6. No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.
25.7. Any communication to be served on either party by the other shall be delivered by hand or sent by first class post or recorded delivery
It shall be deemed to have been delivered:
if delivered by hand: on the day of delivery;
if sent by post to the correct address: within 72 hours of posting;
25.8. So far as the law permits, and unless otherwise stated, this agreement does not give any right to any third party.
25.9. We shall not be liable for any failure or delay in performance of this agreement which is caused by circumstances beyond our reasonable control, [including any labour dispute between a party and its employees].
25.10. In the event of any conflict between any term of this agreement and the provisions of the constitution of a limited company or any comparable document intended to regulate any other corporate or collective body, then the terms of this agreement shall prevail.
25.11. The validity, construction and performance of this agreement shall be governed by the laws of Ireland and you agree that any dispute arising from it shall be litigated only in Ireland.
Under the European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013, you have the right to cancel this contract within 14 days without giving any reason.
The cancellation period will expire 14 days after the contract was made. That means you can cancel before you have downloaded the product or we have delivered it to you.
To meet the cancellation deadline, it is enough for you to send your communication concerning your exercise of the right to cancel before the cancellation period has expired.
To exercise the right to cancel, you must inform us of your decision to cancel this contract by a clear statement, sent to us by post or e-mail.
You may use the attached model cancellation form, but you can use your own words as long as your intention is clear.
[You can also make this form available electronically on your website. If you use this option, you should acknowledge cancellation by email without delay.]
[Attach this form to your contract or show it as a web form. Complete it as far as possible. Edit the last line as to whether it is to be completed as a web form or on paper.]
To [here enter the trader’s name, geographical address and, where available, fax number and e-mail address are to be inserted by the trader]:
I/We hereby give notice that I/we cancel my/our contract of sale of the following products [enter details of goods and any reference].
Ordered on [date]/received on [date],
Name: [enter name or names in which the order was made],
Address: [enter your address],
Signature: (only if this form is notified on paper)
Date: [date]
Explanatory notes:
Website terms and conditions template: retail of sourced or made to order products
For an online retailer of goods the new Regulations are evolutionary rather than a revolution.
To keep it simple, If you sell physical goods then the Regulations apply to you as on any seller of goods BUT the goods you prepare as per specific requirement of a customer are partially exempt from the Regulations. In short you must comply with the Regulations in respect of goods.
The main provisions which affect your business are first, provision of information relating to goods (including specified goods) and your identity; and second, the cancellation provisions.
Here is a short version:
a. description of the main characteristics of the goods;
b. the total price of the goods inclusive of VAT;
c. Your identity, land address and full contact details;
d. the arrangements for payment and delivery of goods;
e. the telephone cost of communicating with you when it is not calculated at the basic rate;
f. the existence of your customer’s right to cancel the contract; and the conditions, time limit and procedure for exercising that right;
g. whether, if the customer exercises the right to cancel, he must bear the cost of returning the goods;
Next, we will tell you about the cancellation provisions.
If the customer at any time chooses to purchase goods from your website, he may cancel his order within 14 days without giving any reason. When he cancels the order, you must give him his money back within 14 days after receiving the cancellation order.
This is not the case with specified goods. These are prepared to the exact order of your customer. Therefore, your customer has no cancellation right because the goods have been made or changed specially for him. Cancellation and return of such goods will be under the terms set down in a contract or as your business model allows.
Please note: When you sell goods to consumer, you have no choice but to inform your customer about his cancellation right and provide cancellation form. That means your customer may cancel the order and return the goods. This document is drawn allowing you to fully comply with the Regulations.
The Act applies to all personal data you collect, use or store. The scope includes data about any INDIVIDUAL.
We have drawn a comprehensive privacy notice. It reassures your website visitors that you take their privacy seriously. More importantly, your adopting it will prompt you to make whatever changes are necessary in your day to day business. You can download it athttps://www.netlawman.ie/d/website-privacy-policy
For this terms and conditions document, you do not have to explain to customers that you comply with law - any more than you would tell them you comply with any other law. This document is your legal contract with your customer or client.
Nonetheless, if a customer or client takes the trouble to read this T&C document, the reason is probably because they seek re-assurance. For that reason, and not for any legal reason, we have included a few points of information. There is no reason why you should not do so too. If you do, we strongly advise to keep them very short and that you check most carefully that you are not adding text that could result in your contravening the Act.
As a vastly reduced summary, the important areas of the Act to consider are:
• you do not have a provision where you are assuming implied consent of customer to use his information in the way you think fit;
• if you allow a user to post information to your website, you may not process, edit or change that information without express consent, if such information include his name, address, image etc.
• Until now, you could simply ask for a tick to a box indicating that your customer or client has read your T&C. That is no longer good enough. You need to say exactly what you might do with your user's data.
• The most important elements of data to consider are personal data and any data which you want to use - for example as a testimonial.
You may find full list at:
https://www.dataprotection.ie/docs/GDPR-Overview/k/1623.htm
We have drawn this terms and conditions document on the assumption that you would make practical changes on your website and use an updated privacy notice. So as to allow you to run your business seamlessly while complying with the Act.
Notes numbering refers to paragraph numbers.
1. Definitions
Every business is different, not only in terms of the product or service being offered, but also the processes. The defined terms that we use are unlikely to suit most businesses perfectly.
By all means use the search and replace function in your word processor to change them, either to other general adjectives, or to specific product or service names. For example:
We use You might decide to change to
“Goods” “Robots”/ “Dolls”
“Our Website” “Robot Store” /: Toy Store” / “The Site”
But if you do change the defined word, make sure it applies to every use of it in the document.
Remember too, that when a word or phrase is defined, the defined meaning, capitalised, takes precedence over the common meaning of that word or phrase.
You should first decide on the contents of the document, then return to check what definitions are needed and whether they really fit the text you have left in place.
2. Interpretation
Leave these items in place unless there is a good reason to edit or remove. Many of them strengthen the framework within which the agreement operates.
3. Our contract with you
This paragraph prevents a party from later saying he was relying on some other document or web site or conversation. With the exception of editing 3.3, leave these items in place.
4. Acceptance of your order
This paragraph establishes the contract. This is very important in an Internet contract because there are so many places in the buying procedure where it could be claimed that the contract has been completed. By leaving the point at which the contract is formed as late as possible, you avoid a position arising where:
you hold your customers’ goods; or
every piece of advertising or information on your website could constitute an offer; or
a customer could claim goods that you inadvertently priced wrongly; or
goods are provided later than you expected or represented.
There are three options. Make quite sure that one of these accurately reflects the way your order process works.
5. Extra Work and approval
The Extra Work is whatever is necessary to change the basic product or material into the Special Goods - the bespoke or specified version. Because there are so many processes that you could follow, we are unable to give many options. Change this paragraph to suit your exact business model.
6. Prices
You must edit these paragraphs to make sure that they reflect how your business works.
7. Payment
Edit to suit your business model.
8. Security of your credit card
This paragraph is more for information than contractual commitment. We have included it here because many users are reluctant to make payment, so this assurance given at the point of sale will allay their fears.
For payment you may have various alternatives like the PayPal and cheque. Edit this paragraph accordingly.
9. Cancellation and refunds
If you sell only to businesses and organisations, delete this paragraph.
This paragraph sets out your customer’s rights as a “gold standard”. In the past, the law has not compelled a seller to disclose his legal obligations. So sellers have not done so. These regulations change that. Because many organisations continue to keep customers in the dark, we believe it is to your advantage to be utterly transparent. Not only will that present you as a high prestige brand, but it will also make clear that you are being unusually helpful and not unnecessarily bureaucratic. There are three pillars of consumer protection:
● Provision of information
● the 14 day cancellation period
● “no fault” return within 14 days of purchase
10. Liability for subsequent defects
With the exception of editing the number of weeks in which the defect is noticed, we suggest leaving these paragraphs as drawn.
11. Delivery
As for the paragraphs on price and payment, there are many alternative ways that your business could work. Edit these paragraphs to suit your business.
12. Foreign taxes and duties
It is important to make this point clear if any of your sales are to other countries. It is not simply a question of avoiding expense or dealing with these matters yourself. More important is that if you tangle with the tax authorities of a foreign government, you may find yourself on the wrong side of the law if you later travel to that country.
13. Risk and retention of title
This paragraph is drawn largely to protect you against a receiver or administrator. Use of depends on your assessment of risk and your business model. It is important only in the context of goods which may have a substantial re-sale value. There may also be marketing considerations in whether you use it.
14. Goods returned
This paragraph provides for the alternative of stating your returns policy on your website. You could argue that a customer is unlikely to have your terms and conditions at hand when he wants to return goods.
It may be easier to edit text on a web page than to change your T&C document. The problem that may arise is that what you say on your website may not be contractually binding. If you are selling low value goods, it is unlikely to matter, but if each sale is high value you need to get it right. The best course is to set out your conditions for return both in the T&C document and on your website.
15. European Union (Waste Electrical and Electronic Equipment) Regulations 2014
The WEEE Regulations are a requirement for retailers who sell electrical goods. If your business does, leave these paragraphs in place, otherwise remove.
16. How we handle your Content
It is a question of balance and maybe how your buyers will react. You are free to delete all or any of it.
This particular paragraph covers a sensitive issue. You should edit to suit the way you operate your business. You need to provide a balance between making precise promises which could trip you up on the one hand and giving a tight enough framework to convince doubters that you will not sell their data. You should also make sure you have the current Net Lawman privacy policy in support.
17. Restrictions on what you may Post to Our Website
This and the following three paragraphs relate directly to aspects of the interface between you and your buyers. The more they are allowed to enter data, upload, download, leave messages, and so on, the greater your risk. You cannot stop a criminal by a term in a document, but you can make clear to regular users, before and after the event, that you will take a tough line for bad behaviour.
The paragraphs in this section have two purposes: the first is the obvious and named purpose of preventing damage to your website and establishing a contractual obligation by your site users not to do so. Secondly, it may assist in protecting you from civil or criminal charges for which you may otherwise be liable as a result of what someone else posts to your website.
No matter what you put in these paragraphs, there is no certainty that you may not be the subject of some sort of attack or other problems. However, we do think it is worth providing a full and strict policy. By doing so, you have the best possible defence against anyone who claims he has been insulted, injured, defamed, or whatever.
Of course, anyone who wishes to continue to use your business will comply.
We suggest that you edit these paragraphs in line with the perceived extent of your risk.
18. Your Posting: restricted content
This paragraph continues in the vein of the previous one. As you see, we intend to make clear that certain other activities are prohibited.
19. Removal of offensive Content
This paragraph is targeted at anyone who is aggrieved by your site content. He may or may not be one of your customers. By stating and following this policy you will reduce the chance of any claim for defamation, breach of copyright, and so on. Depending on how you attract acceptance of the terms generally, this paragraph may not be enforceable against a visitor who has not explicitly agreed to these T&C (for example, visitors who are not subscribers).
20. Security of Our Website
There is an intentional overlap here with the paragraph on restrictions on posting. Your need for this provision also depends on the extent to which users are able to post content of any sort. Delete provisions which are stronger than you need.
21. Disclaimers
We do not have sufficient information about your business to determine how far you can use this paragraph and how binding it will be. We therefore provide an explanation, some parts of which will not apply to you.
Our aim in drawing this paragraph is to limit your liability as far as possible, particularly against events you may not anticipate. We are also aware that you might sell to business, not consumers, and to consumers outside the EU. Note however, that most advanced economies protect their consumers in much the same way as EU consumers are protected. However, a foreign government would have great difficulty in enforcing its rules against you!
There is a substantial set of law which regulates what you can sell to anyone, so no matter what you put in this paragraph, it will not protect you in contract if you sell something different from what an intelligent customer or client would expect. Comparable law covers every part of the sale and return process.
On top of that solid legal structure is an even larger structure relating to protection of consumer rights. That is because consumer protection is extreme in the EU. If you sell to consumers, even occasionally, you must learn what are your legal obligations. The depth of law is huge - far more than we could ever advise here.
We have therefore provided not merely alternative provisions within this paragraph, but two alternative paragraphs. One version is what you can reasonably say if you deal with consumers; the other is the "hard" version which covers everyone else. Select the version according to whether or not you sell to European consumers.
If you sell Worldwide, you could of course arrange for only users outside the EU to receive the hard version - whoever they are.
It is possible that neither of these alternatives will be entirely enforceable. However we have also specified that any provision which offends should be reduced, as opposed to be deleted. In these paragraphs we have provided a terrific contractual shield - but somewhere there may be someone whose arrows will pierce it.
Our best advice to you is to include these disclaimers so far as they apply to your business, but do not expect that you can conduct your business with disregard to the law. The Sale of Goods and Supply of Services Act and a raft of consumer protection law still apply.
You will see that we have also included in the provision for directors and others to have the same protection. One way to get around disclaimer provisions in the past was to claim not against the company with whom the claimant has a contract but against the directors or others in negligence.
22. Your account with us
These terms provide some protection in case of customer disputes about use of an account. We recommend leaving these if your website records customer information for subsequent purchases. If they are not applicable, remove them.
23. Indemnity
We suggest no edits.
24. Intellectual Property
This paragraph is about protecting your IP rights in material / goods have worked on for someone else. It makes clear that if you create a design, that design remains your property.
25. Dispute resolution
This paragraph sets out standard terms as required under the European Union (Alternative Dispute Resolution for Consumer Disputes) Regulations 2015. This new law follows an EU directive. Our opinions are as follows:
The new law is directed at those EU members whose legal systems have perhaps not been fine tuned for nearly 1000 years and which fail to recognise consumer rights adequately.
The purpose of mediation (the most common form of ADR) is to settle a dispute. In practice it should not matter who is the mediator. Of course you should try to find someone with the appropriate experience of business and commercial life, but the requirement for a “qualified” person is meaningless. Mediation is not a subject you can learn from a book. So, if you need to find a mediator, you will have no trouble in finding someone acceptable to both sides.
Mediation costs money. So if the sum in dispute is a small amount, even mediation may be unacceptable.
There seems to be some confusion in the EU regulations as to how far arbitration is included in the proposals. In many EU countries arbitration is either unregulated or confined to international issues like shipping and insurance. Here in Ireland, it is regulated very precisely by the Arbitration Act 2010.
As a result of that act, arbitration entails very similar procedures to those in formal litigation. Most arbitration is as expensive and time consuming as litigation. It is certainly not “alternative” dispute resolution in a way that saves time or money. That is why the courts do not promote it. We advise that you avoid it!
The new regulations require that if you know of a mediator, you should provide details. However, it seems to us that the last person your opponent would agree to use is someone with whom you already have a relationship. Indeed, it would be immoral if that person even agreed to accept repeated instructions.
From here numbering now once again relates to the paragraph in the document.
The law requires that when your internal complaint handling procedure is exhausted then you must tell your customers about using a mediation or arbitration platform. Your obligation is not to force the customer to use these means of dispute resolution but just to provide information. This is to encourage the customer to use ADR rather than litigating.
25.4: in the unlikely event that your business is a large organisation where you have voluntarily committed yourselves (to your trade association?) to use ADR then by all means provide the name, website and contact details of your selected ADR provider.
However, as an online seller of goods the law requires you to provide a link to online alternative dispute resolution platform which is at http://ec.europa.eu/consumers/odr/
You may find more details at:
http://www.irishstatutebook.ie/eli/2015/si/500/made/en/print
https://www.eccireland.ie/ Do not delete this paragraph. This is the requirement of law.
26. Miscellaneous matters
A number of special points. Unless you have a good reason to delete any one of these, we recommend that they should remain as drawn.
Notice of right of cancellation
At the end of the terms document, we have provided the information you must provide to a customer in order to comply with the Regulations. This is not optional. Do not delete or edit.
The first part is your notice to your customers. The second part provides the required information about the cancellation notice followed by the model form. Use a page break before showing these, so that they can be printed easily (if your customer wants to send it by post).
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