THE CUSTOMER’S ATTENTION IS DRAWN TO CLAUSES 3.5, 4.3, 4.7, 4.13 AND 8 WHICH SET OUT THE LIMITATIONS ON THE SUPPLIER’S LIABILITY TO THE CUSTOMER.
In these conditions the following definitions apply:
Business Day: means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: means the terms and conditions set out in this document as amended from time to time.
Contract: means the contract between the Supplier and the Customer for the sale and purchase of the Product(s) in accordance with these Conditions, including but not limited to the Order, Order Confirmation and these Conditions.
Customer: means the person who purchases the Product(s) from the Supplier.
Delivery: means delivery of the Product(s), as confirmed in the Order Confirmation, by the Supplier (or his nominated carrier) to the Delivery Address.
Delivery Address: means the address chosen by the Customer for Delivery in the Order which is confirmed by the Supplier in the Order Confirmation.
Force Majeure Event: means an event beyond a party’s reasonable control.
Product(s): means the Product(s) (or any part of them) set out in the Order.
Order: means an order for the Product(s) submitted by the Customer via the Website.
Order Confirmation: means the written order confirmation sent primarily by email from the Supplier to the Customer confirming acceptance of the Order and confirming the Delivery Address and Delivery details. Where the order confirmation is not capable of being sent by email (including but not limited to circumstances where the Customer does not have an email address), the Supplier shall issue a written order confirmation, at the Suppliers sole discretion, by fax or by post (as applicable) or alternatively orally over the telephone.
Supplier: means Nightwatcher Limited, a company incorporated and registered in England and Wales with company number 10977098 with its registered office at 12 Ashley Road, Boscombe, Bournemouth, Dorset, BH1 4LQ. Nightwatcher Limited’s principal trading address is 21 Headlands Business Park, Ringwood, Hampshire, BH24 3PB.
Website: means https://nightwatcher.co.uk.
In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes email and faxes.
- ACCEPTANCE OF ORDERS
2.1 The submission of an Order constitutes an offer by the Customer to purchase the Product(s) from the Supplier in accordance with these Conditions and at the price shown on the Website in respect of those Product(s) at the time of submission of the Order.
2.2 The Order shall only be deemed to be accepted by the Supplier upon the Supplier issuing an Order Confirmation, at which point the Contract shall come into existence. Where the Supplier is unable to accept the Order for any reason whatsoever, including but not limited to stock availability or manifest error in the advertised price of the Product(s), the Supplier shall notify the Customer by email, fax, post or orally over the telephone and shall refund any charges paid by the Customer at the time of submission of the Order in respect of the affected Product(s).
2.3 The Supplier providing any data, materials, requests for information or undertaking negotiations with the Customer shall not be deemed to constitute acceptance of an Order.
2.4 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues, brochures or on the Website are produced for the sole purpose of giving an approximate idea of the product(s) described in them and are for illustrative purposes only. They shall not form part of the Contract or have any contractual force in relation to the Product(s).
2.5 The Customer is responsible for ensuring that the contents of the Order and that the Delivery Address submitted by the Customer are complete and accurate.
2.6 Where the Customer wishes to make changes to an Order following receipt of an Order Confirmation, the Customer must contact the Supplier on email@example.com as soon as possible. If it is possible for the Supplier to make the changes to the Order, the Supplier shall notify the Customer in writing about any changes to the price of the Product(s), the timing of Delivery or anything else which may be affected as a result of the change to the Order. If the Supplier cannot make the change to the Order or the consequences of making the change are unacceptable to the Customer, the Customer may seek to terminate the Contract in accordance with clause 7.
2.7 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.8 No amendment to these Conditions or the Contract will be accepted by the Supplier unless specifically agreed to in writing and silence on the part of the Supplier shall not constitute a valid acceptance.
3.1 The price for the Product(s) (which include VAT) will be the price shown on the Order Confirmation.
3.2 The Supplier takes all reasonable care to ensure that the prices displayed for the Product(s) on the Website are correct. However, in the unlikely event that the price shown on the Website at the date the Order is submitted by the Customer is incorrect, the Supplier shall:
(a) where the Product(s)’ correct price as at the date of Order is lower than the price stated on the Website, the Supplier agrees only to charge the Customer the lower amount and shall refund the difference in the price paid by the Customer at the time of submission of the Order and the correct price back to the Customer’s payment card;
(b) where the Product(s)’ correct price as at the date of the Order is higher than the price stated on the Website, the Supplier shall contact the Customer by email, fax, post or orally over the telephone for the Customer’s instructions before an Order Confirmation is issued.
3.3 If the Supplier issues an Order Confirmation where a pricing error is obvious and unmistakable and could reasonably have been recognised by the Customer as a mispricing, the Supplier may terminate the Contract immediately, refund the Customer the price paid and require the return of any Product(s) which have been delivered.
3.4 The Supplier accepts payment with Visa, Mastercard, Maestro, American Express, JCB and Diners Club cards and payment must be made at the time of submission of the Order, at which point the Supplier shall take payment for the entire value of the Order.
3.5 For the avoidance of doubt, the Supplier shall not dispatch any Product(s) before first receiving payment of the full purchase price from the Customer in respect of those Product(s). The Supplier shall not be liable to the Customer for any losses resulting from the Supplier’s failure to dispatch Product(s) for Delivery where the full purchase price for the Product(s) has not been paid by the Customer.
3.6 The Supplier reserves the right to increase the price for any Product(s) prior to Delivery where the rate of VAT changes between the date of the Order and the date of dispatch of the Product(s) for Delivery. The Supplier shall adjust the rate of VAT that the Customer shall pay, unless the Customer has already paid for the Product(s) in full before the date of change in the rate of VAT.
4.1 The Supplier shall deliver the Product(s) to the Delivery Address in accordance with the timescales set out in the Order Confirmation.
4.2 The Supplier may deliver the Product(s) by instalments. Each instalment shall constitute a separate Contract. Any delay in Delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.3 Any dates quoted for despatch and/or Delivery within the Order Confirmation are approximate only, and it is agreed that the time of despatch and/or Delivery is not of the essence. The Supplier shall not be liable for any delay and/or failure in Delivery that is caused by a Force Majeure Event, the actions or omissions of the courier of the Product(s), whether selected by the Supplier or the Customer, the Customer’s failure to provide the Supplier with adequate instructions for Delivery or any other instructions that are relevant to the supply of Product(s).
4.5 Where the Supplier fails to deliver the Product(s) on time, the Customers normal statutory rights apply.
4.6 Where the Customer is required to take Delivery, it shall do so within a maximum of 7 days of the Supplier giving notice that the Product(s) are ready for Delivery.
4.7 The Customer must supply to Supplier, all required technical information, data (including drawing approvals) and all required commercial documentation. If dispatch and/or Delivery are delayed due to outstanding information as detailed in this clause the Supplier shall not be liable.
4.8 If the Customer fails to take or accept or by their own actions causes Delivery to be delayed then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
(a) Delivery shall be deemed to have been completed at 9am on the day on which the Supplier notified the Customer that the Product(s) were ready for Delivery; and
(b) the Supplier shall store the Product(s) until Delivery and shall be entitled to charge the Customer for all related costs and expenses for the storage of the Product(s) (including insurance).
4.9 The Customer shall ensure;
(a) accurate information is provided to the Supplier as to the Delivery Address; and
(b) it has suitable personnel and levels of security for receiving the Product(s).
4.10 The Supplier and the Customer agree that the Supplier’s proof of delivery shall constitute evidence of Delivery.
4.11 Unless otherwise set out on the page for the relevant Product(s) on the Website, the costs of Delivery and packaging for the Product(s), where they are to be delivered within the mainland of the United Kingdom, shall be borne by the Supplier.
4.12 Where the Customer requires Product(s) to be delivered to a location outside of the mainland of the United Kingdom, the Customer shall be responsible for the costs of such Delivery. The costs of Delivery to a location outside of the United Kingdom shall be displayed at the checkout page on the Website and shall be confirmed in the Order Confirmation.
- TITLE AND RISK
5.1 The risk in the Product(s) shall pass to the Customer once Delivery has taken place at the Delivery Address (or such other address as is agreed between the Customer and the Supplier in writing).
5.2 Title to the Product(s) shall pass to the Customer once the total purchase price for the Product(s) has been paid in full by the Customer.
- QUALITY OF THE PRODUCT(S)
6.1 The Supplier is under a legal duty to supply Product(s) that are in conformity with the Contract. Nothing in these terms will affect the Customer’s statutory rights.
6.2 The Consumer Rights Act 2015 states that the Product(s) supplied by the Supplier must be as described, fit for purpose and of satisfactory quality. During the expected life of the Product(s), the Customer’s statutory rights entitle them to the following:
- up to 30 days from the date of Delivery – if the Product(s) are faulty, then the Customer may request a refund, repair or replacement.
- after 30 days but up to six months from the date of Delivery – if the Product(s) are faulty, the Customer may request a repair or refund, such remedy to be decided by the Supplier in its sole discretion. If a repair is not possible then the Customer will be entitled to a refund in most cases.
- after six months from the date of Delivery– if the Product(s) can be expected to last up to six years, the Customer may be entitled to request a refund or replacement if the Customer’s Product(s) are faulty. Alternatively, the Customer may be entitled to some of the purchase price as a refund.
6.3 The Supplier reserves the right to change any Product(s) to reflect changes in relevant laws and regulatory requirements and/or to implement minor technical adjustments and improvements, for example to address a security threat. These changes will not affect the Customer’s use of the Product(s).
6.4 Where a separate warranty is provided by the Supplier or the manufacturer of the Product(s), such warranty will not affect the Customer’s statutory rights as described above.
6.5 If the Customer has any questions or complaints about the Product(s), it should contact the Supplier by email on firstname.lastname@example.org or by telephone on the number displayed on the Website.
6.6 If the Customer wishes to exercise its statutory rights to reject a Product, the Customer must contact the Supplier in accordance with clause 6.5 above and obtain a Returns Merchandise Authorisation Number from the Supplier. Upon receipt of the Returns Merchandise Authorisation Number, the Customer shall arrange for the Product to be returned to Nightwatcher Ltd, C/O i-Fulfilment, The Runway, Christchurch, BH23 4FL or allow the Product to be collected by the Supplier (the return method will be communicated to the Customer by the Supplier). The Suppler shall pay the costs of postage or collection in this scenario.
6.7 The Product(s) are intended for use only in the UK. The Supplier does not warrant that the Product(s) comply with the laws, regulations or standards outside the UK.
- RIGHTS TO TERMINATE THE CONTRACT
7.1 The Customer has a right to terminate the Contract for any of the reasons set out in this clause at (a) to (e) below. If the Customer exercises their right to terminate the Contract, the Contract will end immediately and the Supplier will refund the Customer in full for the Product(s) affected which have not been dispatched or Delivered. The reasons are:
- the Supplier has told the Customer about an upcoming change to the Product(s) or these Conditions which the Customer does not agree to;
- the Supplier has told the Customer about an error in the price or description of the Product on the and therefore the Customer does not wish to proceed;
- there is a risk that the supply of the Product(s) may be significantly delayed for any reason whatsoever, including but not limited to the occurrence a Force Majeure Event;
- the Supplier has suspended the supply of the Product(s) for technical reasons, or the Supplier notifies the Customer that it is going to suspend them for technical reasons; or
- the Supplier has not materially complied with the terms of the Contract.
7.2 The Consumer Contracts Regulations 2013 provide that the Customer has a legal right to change their mind and terminate the Contract within 14 days of Delivery of the Product(s). However the Supplier provides a goodwill guarantee to Customers based in the United Kingdom which is more generous that the Customers’ statutory rights outlined above. The Supplier allows the Customer 30 days from the Delivery of the Product(s) to change their mind and terminate the Contract. The Customer will not be permitted to change their mind following the expiry of 30 days from the date of Delivery of the Product(s).
7.3 Where the Customer wishes to exercise their rights in accordance with clauses 7.1 and 7.2 above, the Customer must let the Supplier know and obtain a Returns Merchandise Authorisation Number from the Supplier by doing one of the following:
- Phone or Email: Call customer services on the number shown on the Website or email the Supplier at email@example.com. The Customer should provide their name, home address, details of the order and, where available, the Customer’s phone number and email address; or
- Online: Complete the form on the Website.
7.4 If the Customer is entitled and chooses to terminate the Contract for any reason after the Product(s) have been dispatched or Delivered, the Customer must return them to the Supplier. The Customer must arrange for the Product(s) to be returned to Nightwatcher Ltd, C/O i-Fulfilment, The Runway, Christchurch, BH23 4FL. If the Customer is exercising its right to change its mind the Customer must send off the Product(s) within 14 days of telling the Supplier that it wishes to end the contract. The Customer shall be liable to pay the costs of postage to return the Product(s) in accordance with this clause.
7.5 If, following the termination of the Contract, the Product(s) are being returned to the Supplier pursuant to clause 7.4 above, the Supplier will process the refund within 14 days of the date on which the Supplier receives the Product(s) back from the Customer and checks the Product(s). The Supplier shall notify the Customer in writing upon receipt of the return of the Product(s) and to confirm that the Product(s) have been approved for refund.
7.6 In case of the termination of the Contract where Product(s) have not been dispatched or Delivered, the Supplier shall process the refund due to the Customer within 14 days of the date that the Customer notifies the Supplier that it is terminating the Contract.
7.7 The Supplier may reduce the Customer’s refund of the price (excluding delivery costs) to reflect any reduction in the value of the Product(s), if such reduction in value has been caused by the Customer handling the Product(s) in a way which would not be permitted in a shop. If the Supplier refunds the Customer the price paid for the Product(s) before it is able to inspect the Product(s) and later discover the Customer has handled them in an unacceptable way, the Customer must immediately pay to the Supplier an appropriate amount which the Supplier shall communicate to the Customer in writing.
7.8 The Customer may also terminate the Contract where the Contract has not yet been completed even where clauses 7.1 and 7.2 above do not apply to the Contract. The Contract shall be deemed to be completed when the Product(s) are Delivered. Where the Customer wants to end the Contract before it is completed where the Supplier is not at fault and the Customer has not changed its mind, the Customer must contact the Supplier to let them know. The Contract will end immediately and the Supplier will refund any sums paid by the Customer for Product(s) not provided but the Supplier reserves the right to deduct from that refund reasonable compensation for the net costs the Supplier will incur as a result of the Customer ending the Contract.
- LIMITATION OF LIABILITY
8.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by the Sale of Goods Act 1979 or Consumer Rights Act 2015;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
8.2 Subject to clause 8.1:
(a) the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or unforeseeable consequential loss arising under or in connection with the Contract; and
(b) the Supplier’s total liability to the Customer in respect of all other losses, including foreseeable losses, arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Product(s) provided by the Supplier.
- DATA PROTECTION
9.2 The Company will comply with its obligations under all applicable data protection laws in the United Kingdom, as amended from time to time.
- INTELLECTUAL PROPERTY
10.1 All intellectual property rights in the Product(s), including but not limited to concepts, designs, models, samples, and/or logos and/or products shall belong to the Supplier and/or the third party who has licenced the right to use such intellectual property rights to the Supplier. The Customer shall have no rights whatsoever to an intellectual property rights in the Website or in connection with the Product(s).
10.2 The Supplier expressly forbids the Customer from producing, in any way, part or all of;
- a) any Product(s) owned by the Supplier; and;
- b) any Product(s) supplied by the Supplier to the Customer.
10.3 The Customer acknowledges that, in respect of any third party intellectual property rights in the Product(s), the Customer’s use of such intellectual property rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
- ASSIGNMENT AND SUBCONTRACTING
11.1 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
11.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when they are agreed in writing and are signed by the Supplier.
13.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
14.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier or by email or fax.
14.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.1; if sent by pre-paid first class post or recorded delivery, at 09:00 on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email or fax, one Business Day after transmission.
14.3 The provisions of this clause 14 shall not apply to the service of any proceedings or other documents in any legal action.
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by the Supplier or the Customer to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
- THIRD PARTY RIGHTS
A person who is not a party to the Contract shall not have any rights under or in connection with it.
- GOVERNING LAW AND JURISDICTION
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual dispute or claims), shall be governed by, and construed in accordance with, English law, and the Supplier and the Customer both irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
CANCELLATION FORM FOR CUSTOMERS WHO ARE CONSUMERS
(Complete and return this form only if you wish to withdraw from the contract)
21 Headlands Business Park
I/We [*] hereby give notice that I/We [*] cancel my/our [*] contract of sale of the following goods:
Ordered on/received on [*] .
Name of Customer(s):
Address of Customer(s):
Order Number(s) (if applicable):
Contact Telephone No:
[*] delete as appropriate