In these standard terms and conditions:
1.1 the following words and expressions will have the following meanings unless the context otherwise requires:
“Applicable Law” means any: (a) statute, statutory instrument, bye‑law, order, regulation, directive, treaty, decree, decision of the European Council or law (including any common law or civil law judgment, demand, order or decision of any court, regulator or tribunal); and/or (b) legally binding rule, policy, guidance or recommendation issued by any governmental, statutory or regulatory body in each case which relates to the Contract and/or the Goods;
“Business Day” means a day that is not a Saturday, Sunday or public or bank holiday in England;
“Conditions” means these standard terms and conditions of sale together with any special terms agreed in writing between the Customer and Methven;
“Contract” means the contract between Methven and the Customer for the sale and purchase of the Goods formed in accordance with Condition 2;
“Customer” means the person whose Order for Goods is accepted by Methven in accordance with Condition 2.3;
“Data Protection Legislation” means (i) the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) unless and until the GDPR is no longer directly applicable in the UK, together with any national implementing laws, regulations and secondary legislation as amended or updated from time to time in the UK, including the Data Protection Act 2018 (“DPA”); and then (ii) any successor legislation to the GDPR and the DPA.
“Delivery Point” means the place where delivery of the Goods is to take place under Condition 5.1 as set out in the Order;
“Force Majeure Event” means any (a) act of God; (b) war, insurrection, riot, civil commotion, act or threat of terrorism; (c) lightning, earthquake, fire, flood, storm or extreme weather condition; (d) theft, malicious damage; (e) strike, lockout or industrial dispute (whether affecting the workforce of Methven and/or any other person); (f) breakdown or failure of plant or machinery; (g) inability to obtain essential supplies or materials; (h) change in Applicable Law; (i) failure or default of a supplier or sub-contractor of Methven; or (j) event or circumstance to the extent it is beyond the reasonable control of Methven;
“Goods” means any goods which Methven supplies to the Customer (including any of them or any part of them) under a Contract;
“Insolvent” the Customer is Insolvent where it: (a) ceases, threatens to cease or, in Methven’s reasonable opinion appears likely to cease, to trade; (b) goes into liquidation or bankruptcy (or has a petition for its winding up or bankruptcy presented or passes a resolution for its winding up), (c) goes into administration (or is subject to an administration order or an application for an administration order made in respect of it), (d) has a receiver or administrator appointed over some or all of its assets or proposes an arrangement or compromise with its creditors; or (e) is the subject of anything analogous to the foregoing under the laws of any applicable jurisdiction;
“Methven” means Methven UK Limited (registered number 06290166) whose registered office is at Eversheds House, 70 Great Bridgewater Street, Manchester, M1 5ES;
“Order” means a request by the Customer to purchase Goods from Methven; and
“Prices” means the price(s) of the Goods set out in Methven’s price list in force at the date of dispatch of the Goods or such other price(s) as agreed by the parties in writing;
1.2 all headings are for ease of reference only and will not affect the construction or interpretation of the Conditions;
1.3 unless the context otherwise requires:
1.3.1 references to the singular include the plural and vice versa and references to any gender include every gender;
1.3.2 references to a “person” include any individual, body corporate, association, partnership, firm, trust, organisation, joint venture, government, local or municipal authority, governmental or supra-governmental agency or department, state or agency of state or any other entity (in each case whether or not having separate legal personality);
1.4 references to any statute or statutory provision will include any subordinate legislation made under it and will be construed as references to such statute, statutory provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time; and
1.5 any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them.
Formation and Incorporation
2.1 Subject to Condition 2.7, these Conditions apply to all Orders and Contracts for the supply of Goods by Methven to the Customer. Methven’s acceptance of any Order placed by the Customer is strictly conditional upon the Customer’s acceptance of these Conditions and by placing an Order the Customer confirms its unconditional acceptance of these Conditions to the exclusion of all other terms and conditions which the Customer purports to apply under the Order, confirmation of order or similar document (including those stipulated or referred to by the Customer during the course of pre-contract discussions and/or negotiations) whether or not such document is referred to in the Contract.
2.2 Methven may update these Conditions from time to time. The current version of Methven’s Conditions (as updated) can be found at www.deva-uk.com (the “URL”).
2.3 Each Order or acceptance by the Customer of a quotation for Goods will be deemed to be an offer by the Customer to purchase Goods upon the most recent version of these Conditions (as available at the URL) at the time that the Order is placed or the quotation for Goods is accepted. The Contract is formed when the order is accepted by Methven by way of a written acknowledgement of order or by processing the Order (whichever the earlier).
2.4 The Customer must ensure that the terms of its Order and any applicable specification are complete and accurate.
2.5 Acceptance of delivery of the Goods will be deemed conclusive evidence of the Customer’s acceptance of these Conditions.
2.6 Methven may cancel the Contract at any time prior to delivery.
2.7 Save as otherwise expressly provided in the Contract, no variation to the Contract (including these Conditions) will be effective unless it is in writing and signed by a duly authorised representative on behalf of Methven. Any oral undertakings or instructions issued and/or received by Methven’s employees shall not bind Methven unless it has confirmed them in writing.
2.8 A quotation for the Goods given by Methven shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue, unless otherwise agreed in writing by Methven.
Description and Specification
3.1 All samples and information, prices, specifications, descriptions and/or colour of illustrations shown in Methven’s catalogues, advertisements, brochures, on Methven’s website or in any other communications from or on behalf of Methven from time to time are indicative, subject to change without notice and shall under no circumstances form part of the Contract or otherwise bind Methven.
3.2 Methven may make any changes to the specification, design, materials or finishes of the Goods which:
3.2.1 are required to conform with any Applicable Laws; or
3.2.2 do not materially affect their quality or performance.
3.3 Where Goods are made to the Customer’s own specification or design (“Specification”), the Customer undertakes full responsibility for the suitability and fitness of the Specification and will indemnify, keep indemnified and hold harmless Methven in full and on demand against all actions, claims, costs, demands, expenses and damages (including without limit for legal actions) however suffered or incurred by Methven in the event that any claim or claims are made or alleged against Methven relating to the Specification and/or the manufacture, use, sale, import and/or export of any Goods based on the Specification.
Price and Payment
4.1 Except as set out in Condition 4.3 or as otherwise agreed in writing by the parties, the Prices are exclusive of insurance, carriage and delivery costs which will be payable by the Customer in addition to the Prices. Any sum payable under the Contract is exclusive of value added tax (and any other similar or equivalent taxes, duties, fees and levies imposed from time to time by any government or other authority) which will be payable in addition to that sum in the manner and at the rate prescribed by law from time to time.
4.2 Methven will be entitled to vary the Prices:
4.2.1 following any request by the Customer to change the delivery date(s), quantities or types of Goods ordered;
4.2.2 following any changes in the specification made at the request of the Customer and agreed by Methven;
4.2.3 to cover any extra expense as a result of the Customer’s instructions or lack of instructions and/or a failure of the Customer to give Methven adequate or accurate information;
4.2.4 to comply with the requirements referred to in Condition 3.2.1;
4.2.5 to cover any increase in the cost to Methven of manufacturing or selling the Goods including foreign exchange fluctuations, increases in taxes and duties and/or the application of any new taxes or duties including import tariffs, and increases in labour, materials and/or manufacturing costs; and/or
4.2.6 to cover any increase in the cost to Methven of supplying any Goods and/or complying with any of its obligations under the Contract where such increases are caused in whole or in part (directly or indirectly) by any factor(s) outside the reasonable control of Methven.
Methven will give written notice of the variation to the Customer.
4.3 Where the Price for the Goods contained in any Order for delivery:
4.3.1 to the United Kingdom (excluding Northern Ireland and all Scottish islands) is equal to or greater than £50.00 (fifty pounds sterling) excluding VAT, the Price includes the cost of carriage to the contracted place of delivery;
4.3.2 to the United Kingdom (excluding Northern Ireland and all Scottish islands) is less than £50.00 (fifty pounds sterling) excluding VAT, a delivery charge of £5.00 (five pounds sterling) will be payable by the Customer to Methven in addition to the Price;
4.3.3 to Northern Ireland, the Republic of Ireland, the Channel Islands or the Isle of Man is equal to or greater than £200.00 (two hundred pounds sterling) excluding VAT, the Price includes the cost of carriage to the contracted place of delivery;
4.3.4 to Northern Ireland, the Republic of Ireland, the Channel Islands or the Isle of Man is less than £200.00 (two hundred pounds sterling) excluding VAT, a delivery charge of £20.00 (twenty pounds sterling) will be payable by the Customer to Methven in addition to the Price,
and in each case, Methven will deliver the Goods to the contracted place of delivery by the means most convenient to Methven.
4.4 The Customer will pay the Prices to Methven in accordance with this Condition 4. All payments will be made in cleared funds in the currency in which the sums payable are expressed on Methven’s invoice.
4.5 Payment for Goods by credit or debit card will incur at the time of payment a surcharge of 2% of the Price of the Goods, or such other rate as notified in writing to the Customer by Methven from time to time.
4.6 Methven will be entitled to invoice the Customer for the Prices for the Goods and any applicable insurance, carriage and delivery costs payable by the Customer in addition to the Prices following dispatch of the Goods to the Customer.
4.7 Unless otherwise agreed in writing by Methven, each invoice will be payable by the Customer not later than 30 days following the month in which the invoice is issued. Time for payment by the Customer shall be of the essence of the Contract.
4.8 Notwithstanding any purported contrary appropriation by the Customer, Methven will be entitled, by giving written notice to the Customer, to appropriate any payment by the Customer to any invoice issued by Methven.
4.9 If any sum payable under the Contract is not paid on or before the due date for payment Methven will be entitled to charge the Customer interest on that sum at 4% per annum above the base lending rate from time to time of the Bank of England from the due date until the date of payment (whether before or after judgment) compounding annually, such interest to accrue on a daily basis.
4.10 Notwithstanding Condition 4.9, Methven may, at its sole discretion and as an alternative to Condition 4.9, claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
4.11 Save as otherwise expressly provided in the Contract or required by law, all payments to be made by the Customer to Methven under the Contract will be made in full and without any set-off or any deduction or withholding including on account of any counter-claim.
4.12 Methven will be entitled to invoice and the Customer will pay (within 30 days following the date on which the invoice was issued) the sum of £25.00 or, if greater, any sums payable by Methven to any financial institution as a result of one or more cheques failing to pass such financial institution’s cheque clearing process at the first attempt.
4.13 The Customer will pay to Methven all costs, expenses and disbursements incurred by Methven (including debt collection costs, agency fees and commissions and legal costs) relating to the recovery by Methven of any amounts not paid when due by the Customer under these Conditions.
4.14 In the event that Methven agrees to apply discounted Prices to the Customer’s Orders of particular Goods for a fixed time period and/or in respect of a specified quantity of Goods (a “Fixed Term Quotation”) and Methven provides the Customer with a quotation number in respect of the Fixed Term Quotation, the application of the discounted Price to an Order is conditional on the Customer quoting the quotation number and/or the agreed discounted Price at the time of placing such Order. If the Customer fails to quote the quotation number or the agreed discounted price at the time of placing an Order (i) the discounted Prices will not be applied to the Order; and (ii) no credits or other adjustments will be made to the Price payable for the ordered Goods once the Order has been accepted by Methven. At the end of the period of fixed term pricing, the Price for the Goods will be the Price set out in Methven’s price list in force at the date of dispatch of the Goods from Methven to the Customer.
5.1 The Goods will be delivered to the Delivery Point. Where the Delivery Point is a location other than Methven’s place of business, the Customer shall be solely responsible for (i) providing Methven with a correct address for delivery, suitable access having regard to the size and nature of the delivery and (ii) no less than 5 Business Days prior to Methven’s proposed delivery date, notifying Methven in writing of any changes to the delivery address and the Customer’s contact details.
5.2 Any dates quoted for delivery are approximate only. Methven will use reasonable endeavours to deliver each of the Customer’s orders for the Goods within the time agreed when the Customer places an Order and, if no time is agreed, then within a reasonable time, but the time of delivery will not be of the essence. If, despite those endeavours, Methven is unable for any reason to fulfil any delivery or performance on the specified date, Methven will not be in breach of the relevant Contract, nor (for the avoidance of doubt), subject to Condition 9.5, will Methven have any liability to the Customer for direct, indirect or consequential loss (all three of which terms include pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused (including as a result of negligence) by any delay or failure in delivery. Any delay in delivery will not entitle the Customer to cancel the Order unless and until the Customer has given 5 Business Days’ written notice to Methven requiring the delivery to be made and Methven has not fulfilled the delivery within that period. If the Customer cancels the order in accordance with this Condition 5.2 then:
5.2.1 Methven will refund to the Customer any sums which the Customer has paid to Methven in respect of that Order or part of the Order which has been cancelled; and
5.2.2 The Customer will be under no liability to make any further payments under Condition 4.3 in respect of that Order or part of the Order which has been cancelled.
5.3 Methven shall not be in breach of Condition 5.2 and, subject to Condition 9.5, shall have no liability to the Customer for any delay in delivery of the Goods or failure to deliver the Goods which arises out of or in connection with the Customer’s failure to provide Methven with adequate delivery instructions or other information reasonably required to enable Methven to comply with Condition 5.2.
5.4 Methven shall be entitled to defer or withhold delivery of the Goods until all monies due from the Customer under the Contract or any other contract between Methven and the Customer have been received by Methven.
5.5 Where the Delivery Point is Methven’s place of business, (i) the Customer will take delivery of the Goods within five Business Days of Methven giving it notice that the Goods are ready for delivery; (ii) delivery of the Goods will be made during Methven’s usual business hours; and (iii) delivery shall be deemed to occur upon the taking of possession of the Goods by the Customer. Where the Delivery Point is not Methven’s place of business, delivery of the Goods will be accepted at any time of day and delivery shall be deemed to occur upon commencement of unloading the Goods from the delivery vehicle.
5.6 The Customer will be responsible for loading or off-loading (as applicable) the Goods at the Delivery Point and, where the Delivery Point is not Methven’s place of business, the Customer will provide at its risk and expense adequate and appropriate equipment and manual labour for such loading or off-loading.
5.7 Methven may deliver the Goods by separate instalments. Methven will be entitled to invoice the Price for each instalment separately in accordance with Condition 4.6.
5.8 Each instalment will be a separate Contract and no cancellation or termination of any one Contract relating to an instalment will entitle the Customer to repudiate or cancel any other Contract or instalment.
5.9 In the case of goods to be sent by sea, Methven shall be under no obligation to give the Customer any notice for the purposes of Section 32(3) of the Sale of Goods Act 1979.
Risk and Ownership
6.1 The risk of damage to or loss of the Goods shall pass to the Customer on delivery.
6.2 The Customer will inspect the Goods on delivery and will, as soon as possible and in any event within seven days from and including the date of delivery, give notice to Methven of any breach or defects in relation to those Goods (including any shortfall in or damage to the Goods).
6.3 If the Customer does not give notice to Methven under Condition 6.2 in respect of any Goods, the Customer will be deemed to have accepted such Goods on expiry of the seven day period from and including the date of delivery.
6.3.1 Legal and beneficial ownership of the Goods shall not pass to the Customer until Methven has received payment in full in cleared funds for:
6.3.2 all sums including any interest and any debit or credit card surcharge due in respect of the Goods; or
6.3.3 any other goods or services that Methven has supplied to the Customer.
6.4 Until title to the Goods has passed to the Customer, the Customer shall:
6.4.1 hold the Goods on a fiduciary basis as Methven’s bailee;
6.4.2 store the Goods (at no cost to Methven) separately from all other goods held by the Customer so that they remain identifiable as Methven’s property;
6.4.3 not destroy, remove, deface or obscure any identifying mark or packaging on or relating to the Goods; and
6.4.4 maintain the Goods in satisfactory condition and keep them insured against all risk for their full price from the date of delivery; but the Customer may resell or use the Goods in the ordinary course of its business. Any sale of Goods by the Customer pursuant to this Condition 6.4 will be a sale of the Customer’s property on the Customer’s own behalf and the Customer will deal as principal when making such a sale.
6.5 The Customer’s right to possession, use and resale of the Goods will terminate immediately:
6.5.1 if the Customer becomes Insolvent;
6.5.2 on Methven giving the Customer written notice that it has any reasonable concerns regarding the financial standing of the Customer;
6.5.3 if the Customer fails to pay any sum due to Methven under the Contract or any other contract between Methven and the Customer on or before the due date; or
6.5.4 if the Customer encumbers or in any way charges any of the Goods.
6.6 The Customer grants Methven, its agents, employees and sub-contractors an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession, use and resale has terminated, to recover them.
6.7 If the Customer’s right to possession, use and resale of the Goods terminates in accordance with Condition 6.5, Methven will be entitled to issue the Customer with a credit note for all or any part of the price of the Goods together with value added tax thereon.
6.8 In the event that Methven has failed to deliver the Goods by the date on which the Customer received an invoice in respect of the Goods, the Customer must within seven days from and including the date on which the invoice was received by the Customer inform Methven that such Goods have not been delivered.
7.1 If the Customer:
7.1.1 fails to make any payment when it becomes due;
7.1.2 becomes Insolvent;
7.1.3 commits a material breach of the Contract which cannot be remedied; or
7.1.4 commits a material breach of the Contract which can be remedied but fails to remedy that breach within 30 days of a written notice setting out the breach and requiring it to be remedied being given by Methven, without prejudice to any other rights that Methven may have under the Contract or otherwise, Methven may (at its discretion) defer or cancel any further deliveries and/or terminate the Contract immediately by giving written notice to that effect to the Customer.
7.2 A material breach can be remedied if the Customer can comply with the relevant obligation in all respects other than as to time of performance unless time of performance of such obligation is of the essence.
7.3 Following expiry or termination of the Contract:
7.3.1 Methven will be entitled to invoice all Prices and any insurance, carriage and delivery costs incurred which have not yet been invoiced; and
7.3.2 all invoices (including any invoices issued under Condition 7.3.1) will become immediately due and payable by the Customer.
7.3.3 Conditions 1, 2, 6, 7.3, 8, 9, 10 and 13 will continue in force, together with any other Conditions which expressly or impliedly continue to have effect after expiry or termination of the Contract; and
7.3.4 all other rights and obligations will immediately cease without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to the date of expiry or termination.
7.4 Methven will be entitled to suspend any deliveries otherwise due to occur following service of a notice specifying a breach under Condition 7.1.4, until either the breach is remedied (if applicable) or the Contract terminates, whichever occurs first.
7.5 Subject to Condition 5.2, cancellation and/or deferment of any Order by the Customer will only be accepted (at Methven’s sole discretion) by Methven issuing express written approval of such cancellation and/or deferment to the Customer and in any case on condition that any costs or expenses incurred by Methven up to the date of cancellation and/or deferment and all loss, costs and/or other liabilities resulting to Methven by reason of such cancellation and/or deferment will be immediately (on request by Methven) reimbursed by the Customer to Methven.
8.1 Methven will, free of charge, within a period of 12 months from the date of delivery of Goods which are proved to the reasonable satisfaction of Methven to not comply with specification due to defects in materials, workmanship and/or design (other than a design made, furnished or specified by the Customer), repair, or at its option replace, such Goods. This obligation will not apply where:
8.1.1 any instructions as to storage of the Goods have not been complied with in all respects or the Goods have been otherwise incorrectly stored; or
8.1.2 the Customer has failed to notify Methven of any defect or suspected defect within 7 days of the delivery where the defect should be apparent on reasonable inspection, or within 7 days of the same coming to the knowledge of the Customer where the defect is not one which should be apparent on reasonable inspection, and in any event no later than 12 (twelve) months from the date of delivery.
8.2 Methven will arrange for any such defective or damaged Goods to be collected and will deliver any replacement Goods to the Customer at Methven’s own expense. If Methven or its carrier is unable to collect the Goods on the date proposed by the carrier due to any act or omission by the Customer then an administration fee of £15.00 will be payable by the Customer (which Methven may deduct from any sums refunded to the Customer).
8.3 Any Goods which have been replaced will belong to Methven. Any repaired or replacement Goods will be liable to repair or replacement under the terms specified in Condition 8.1 for the unexpired portion of the 12 month period from the original date of delivery of the replaced Goods.
8.4 Subject to Condition 9.5 the Customer’s sole remedy and Methven’s entire liability in respect of (i) Goods which do not comply with specification due to defects in materials, workmanship and/or design; and/or (ii) Goods which are otherwise defective, shall be as set out in this Condition 8.
9.1 In the event of any breach of Methven’s obligations under Conditions 5.2 ro 8 above, the remedies of the Customer will be limited to damages.
9.2 Except as set out in these Conditions, all warranties, conditions and other terms implied by law (whether by statute, common law or otherwise), are, to the fullest extent permitted by law, excluded from the Contract.
9.3 Subject to Conditions 9.4 and 9.5, Methven’s maximum aggregate liability arising out of or in connection with a Contract, whether in contract, tort, misrepresentation, under statute or otherwise, howsoever caused including by negligence and also including any liability under an indemnity contained in the Contract and/or arising from a breach of, or a failure to perform or defect or delay in performance of, any of Methven’s obligations under the Contract and/or any defect in any of the Goods supplied under the Contract and/or any use made or resale of any of such Goods by the Customer or of any product incorporating any of such Goods shall be limited to 125% of the aggregate Price paid or payable under the Contract.
9.4 Subject to Condition 9.5, Methven shall have no liability to the Customer for any loss of profit (direct or indirect); loss of revenue, loss of production or loss of business (in each case whether direct or indirect); loss of goodwill, loss of reputation or loss of opportunity (in each case whether direct or indirect); loss of anticipated savings or loss of margin (in each case whether direct or indirect); loss of bargain; liability of the Customer to third parties (whether direct or indirect); or indirect, consequential or special loss; arising out of or in connection with the Contract, whether in contract, tort, misrepresentation, under statute or otherwise, howsoever caused including by negligence and/or arising from a breach of, or a failure to perform or defect or delay in performance of, any of Methven’s obligations under the Contract.
9.5 Nothing in the Contract shall operate to exclude or restrict Methven’s liability (if any) to the Customer for breach of its obligations arising under section 12 of the Sale of Goods Act 1979; for breach of its obligations arising under Section 2 of the Supply of Goods and Services Act 1982; for death or personal injury resulting from its negligence; for its fraud or fraudulent misrepresentation; or for any matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability.
Return of Goods
10.1 No return of Goods will be accepted by Methven without prior authorisation and a return order number being issued by Methven.
10.2 In the event the Customer returns any Goods which are not defective, such Goods will be accepted by Methven only if they are returned to Methven in an undamaged resalable condition which requires that the Goods are unused and contained within their original undamaged packaging, and only if:
10.2.1 after Methven has inspected such Goods, Methven reasonably considers that the Goods are in a condition which is no worse than the condition in which the Goods were delivered to the Customer; and
10.2.2 the Customer has returned the relevant Goods to Methven within 30 days following the date on which the Goods were delivered to the Customer.
10.3 In the event that the Customer wishes to return non-defective Goods to Methven following the expiry of the 30 day period set out in Condition 10.2.2 above, Methven will have absolute sole discretion as to whether it shall offer a refund to the Customer in respect of such Goods.
10.4 In relation to any returns made:
10.4.1 under Condition 10.2, Methven will deduct 25% of the aggregate of the Price plus any surcharge paid under Condition 4.5 for the relevant Goods; and
10.4.2 under Condition 10.3 above, Methven will deduct a discretionary restocking fee (which may exceed 25% of the aggregate of the Price plus any surcharge paid under Condition 4.5 for the relevant Goods), plus the cost of carriage, from the sums refunded to the Customer in order to cover Methven’s administration and restocking costs.
10.5 Subject to clause 8, Methven will not accept any return of (or issue any refund or credit in respect of) non-faulty Goods more than 90 days following the delivery date.
10.6 If Methven receives any returned Goods or other products which:
10.6.1 have not been given prior authorisation for return in accordance with Condition 10.1;
10.6.2 have been returned as defective but which, upon inspection by Methven, are found not to be defective; and/or
10.6.3 are received by Methven more than 90 days following the delivery date,
Methven will be entitled but not obliged to return such Goods to the Customer at the Customer’s cost and charge to the Customer a £15 (plus VAT) handling fee.
10.7 Methven shall be under no obligation to accept the return of or provide a refund in respect of any Goods ordered to the Customer’s Specification except insofar as such Goods are defective in which case Condition 8 shall apply.
10.8 If a return of Goods has been agreed by Methven, it will arrange a collection date with its carrier. If Methven or its carrier is unable to collect the Goods on the date proposed by the carrier due to any act or omission by the Customer then an administration fee of £15.00 will be payable by the Customer (which Methven may deduct from any sums refunded to the Customer).
11.1 Each party shall comply with applicable requirements of the Data Protection Legislation. This clause 11 is in addition to and does not replace a party's obligations under the Data Protection Legislation. The terms "Data Controller", "Data Processor", “Data Subject”, "Personal Data", "Process" and "Processing" have the meanings prescribed in the Data Protection Legislation.
11.2 For the purposes of the Data Protection Legislation, the Customer is the Data Controller and Methven is the Data Processor.
11.3 Methven shall:
11.3.1 Process Personal Data only on the Customer’s written instructions. If Methven is required by any applicable laws to Process Personal Data it shall, to the extent legally permitted, notify the Customer before doing so;
11.3.2 have in place appropriate technical and organisational measures to protect against unauthorised or unlawful Processing of, accidental loss or destruction of or damage to Personal Data, appropriate to the harm that might result from the unauthorised or unlawful Processing or accidental loss, destruction or damage and the nature of the data to be protected;
11.3.3 not engage another processor without general written authorisation from the Customer and Methven shall remain fully liable to the Customer for performance of the other processor’s obligations to the extent the other processor fails to fulfil their data protection obligations. For the purposes of this clause 11.6, the Customer authorises Methven to engage: (i) third party delivery companies and couriers to deliver Goods on Methven’s behalf; and (ii) third party invoice processing companies;
11.3.4 ensure that persons who have access to or Process Personal Data keep the Personal Data confidential (either under contractual or statutory obligations);
11.3.5 subject to clause 11.6, not transfer Personal Data outside of the European Economic Area without notifying the Customer in advance and Methven shall ensure that the transfer is made in accordance with the Data Protection Legislation and that the organisations to which the Personal Data is transferred ensure an adequate level of protection;
11.3.6 assist the Customer to respond to any request from a Data Subject and to comply with the Customer’s obligations under the Data Protection Legislation;
11.3.7 notify the Customer without undue delay of a Personal Data breach (which has the meaning given to it in the Data Protection Legislation);
11.3.8 at the Customer’s written direction, delete or return Personal Data to the Customer on termination of the Contract unless Methven is required by law to store the Personal Data; and
11.3.9 maintain complete and accurate records and information to demonstrate Methven’s compliance with this clause.
11.4 Methven shall immediately inform the Customer if, in Methven’s opinion, an instruction from the Customer infringes the Data Protection Legislation.
11.5 If the Customer passes Personal Data about an end-consumer to Methven for Methven to Process, the Customer confirms that it has either obtained consent (in accordance with the requirements of the Data Protection Legislation) from the end consumer to pass the Personal Data to Methven or that the Customer is able to rely on another ground set out in the Data Protection Legislation to pass the end consumer’s Personal Data to Methven.
11.6 Notwithstanding clause 11.3.5, Methven may transfer Personal Data to its head office located in New Zealand with company name Methven Limited and registered company address at 41 Jomac Place, Avondale, Auckland 1026, New Zealand. The European Commission has made a finding of adequacy in respect of transfers of Personal Data to New Zealand and the transfer is conducted on that basis.
11.8 Details of the subject matter, nature and purpose of Processing by Methven, the duration of the Processing, the types of Personal Data and categories of Data Subject and the obligations and rights of the data controller are set out below:
11.8.1 subject matter of processing: the provision of Goods pursuant to these Conditions;
11.8.2 duration of processing: Personal Data shall be retained by Methven for the duration of the Order and until these Conditions expire or are terminated. Methven shall retain Personal Data beyond the end of that period as required by its insurance policies in place for time to time, to enable it to deal with contractual claims under these Conditions and to meet statutory obligations. Methven may retain Personal Data about individual contacts at the Customer’s organisation if it is included in surveys completed by the Customer, in which case they will be retained for no longer than 3 years from the date of the survey;
11.8.3 nature of processing: Personal Data about individual contacts at the Customer’s organisation will be Processed in order to fulfil the order placed by the Customer or the end-consumer in respect of whom Personal Data has been passed to Methven by the Customer. Personal Data about the Customer will be Processed in order to send satisfaction surveys and similar documents to the Customer;
11.8.4 purpose of processing: for fulfilment of the Customer’s Order pursuant to these Conditions;
11.8.5 types of personal data: name; address; e-mail address; telephone number; Methven’s correspondence and communications with the Customer; information about any complaints and enquiries made to Methven by the Customer or the end-consumer; information provided by the Customer in its responses to customer satisfaction surveys; and information Methven receives from other sources, such as publicly available information (for example Companies House or credit reference agencies);
11.8.6 categories of data subject: individual contacts at the Customer’s organisation and end-consumers in respect of whom Personal Data has been passed to Methven by the Customer; and
11.8.7 obligations and rights of the data controller: the obligations and rights of the Customer as set out in the Data Protection Legislation and these Conditions.
12.1 Methven will not be in breach of the Contract or otherwise liable to the Customer for any failure to perform or delay in performing its obligations under the Contract to the extent that such failure or delay is due to a Force Majeure Event. The Customer will continue to pay the prices for any Goods which Methven continues to supply notwithstanding the occurrence of the Force Majeure Event.
12.2 If Methven is unable to deliver or the Customer is unable to take delivery of a material part of the Goods for a period of more than 14 days due to a Force Majeure Event which gives rise to relief from liability under Condition 12.1, Methven will be entitled to terminate the Contract immediately by giving written notice to that effect to the Customer.
13.1 Time will not be of the essence in respect of any obligation with which Methven is required to comply under the Contract.
13.2 Methven’s rights and remedies set out in the Conditions are in addition to and not exclusive of any rights and remedies provided by law.
13.3 If any term of the Contract is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from the Contract and this will not affect the remainder of the Contract which will continue in full force and effect.
13.4 A delay in exercising or failure to exercise a right or remedy under or in connection with the Contract will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor will the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the party giving it and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default.
13.5 The Customer will not be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of its rights under the Contract or to sub-contract any of its obligations under the Contract.
13.6 Methven will be entitled to assign, transfer, charge, hold on trust for any person and deal in any other manner with any of its rights under the Contract and to sub-contract any of its obligations under the Contract.
13.7 The parties do not intend that any term of the Contract will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person other than the parties.
13.8 The Contract constitutes the entire agreement between the parties and supersedes any prior agreement or arrangement in respect of its subject matter and:
13.8.1 neither party has entered into the Contract in reliance upon, and it will have no remedy in respect of, any misrepresentation, representation or statement (whether made by the other party or any other person) which is not expressly set out in the Contract;
13.8.2 the only remedies available for any misrepresentation or breach of any representation or statement which was made prior to entry into the Contract and which is expressly set out in the Contract will be for breach of contract; and
13.8.3 nothing in this Condition 13.8 will be interpreted or construed as limiting or excluding the liability of any person for fraud or fraudulent misrepresentation.
13.9 Any notice or other communication required to be given to a party under or in connection with this contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or other next working day postal delivery service, at its registered office (if a company) or (in any other case) its principal place of business.
13.10 Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt, or otherwise at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
13.11 Conditions 13.9 and 13.10 do not apply to the service of any proceedings or other documents in any legal action to which the Civil Procedure Rules apply.
13.12 The Contract and any non-contractual obligations arising out of or in connection with it will be governed by English law.
13.13 Each party agrees that the courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with the Contract (including in relation to any non-contractual obligations).
13.14 Either party may seek specific performance, interim or final injunctive relief or any other relief of similar nature or effect in any court of competent jurisdiction.