These terms and conditions set out the basis upon which goods or services are supplied by Pearsons of Duns Limited t/a Pearsons of Duns, Swainson & Cowins and/or Self Storage, POD Van Hire and/or Border Chainsaw Lawnmower Services
1.1 In these Conditions the following definitions apply:
"Business Day" means a day other than Sunday or public holiday when banks generally are open for non-automated business in Scotland;
"Buyer" means the person(s) who purchases the Goods or Services from the Seller;
"Conditions" means the terms and conditions set out in this document;
"Contract" means the agreement between the Seller and the Buyer for the sale and purchase of Goods and/or the provision of Services, incorporating these Conditions and the Sales Order;
"Delivery Location" means the address for delivery of the Goods or if appropriate at which the Services will be provided as set out in the Delivery Note;
"Delivery Note" means the document (which may be an email) provided to the Buyer by the Seller confirming the Seller’s delivery of the Goods to the Delivery Location;
"Force Majeure" means an event or sequence of events beyond the Seller’s reasonable control preventing or delaying it from performing its obligations under the Contract including (but not limited to) an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption or failure of supplies of power, fuel, water, transport, equipment, telecommunications service or material required for performance of the Contract, except any party's failure to pay shall not be an event of Force Majeure in any event;
"Goods" means the goods supplied by or on behalf of the Seller to the Buyer as set out in the Sales Order or otherwise;
"Order" means the Buyer's order for the Goods and/or Services from the Seller, as communicated by the Buyer to the Seller verbally, in writing, email, telephone, text message, order form, fax, via the Website or otherwise;
“Sales Order” means the document (which may be an email and which may comprise all or any of the following documents: an agreed quotation, payment receipt or invoice) provided to the Buyer by the Seller confirming the Seller’s acceptance of the Order;
"Seller" means Pearsons of Duns Limited a limited company registered in Scotland with company registration number SC183235 whose registered office is at The Cheeklaw Centre, Station Road, Duns, Berwickshire, TD11 3EL;
"Services" means any services provided by or on behalf of the Supplier as set out in the Sales Order or otherwise;
"Value Added Tax or VAT" means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale or supply of the Goods;
"Website" means any of the Seller’s websites at pearsonsofduns.co.uk, garden.pearsonsofduns.co.uk, swainsonandcowins.co.uk and/or borderchainsaw.co.uk.
1.2 Unless the context otherwise requires:
1.2.1 each gender includes the others;
1.2.2 the singular includes the plural and vice versa;
1.2.3 references to persons include individuals, unincorporated bodies, government entities, companies and corporations;
1.2.4 clause headings do not affect their interpretation;
1.2.5 general words are not limited by example;
1.2.6 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; and
1.2.7 references to any legislation will be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
2 Application of these terms and conditions
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, or are referenced in the Order.
2.2 No variation of: (i) these Conditions; (ii) an Order; (iii) a quotation from the Seller; or (iv) the Contract; will be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Seller.
2.3 Each Order by the Buyer to the Seller will be deemed to be an offer to purchase Goods or receive the Services and subject to these Conditions. Once an Order is submitted it can only be cancelled with the Seller's consent or in accordance with Condition 7.3.
2.4 The Seller reserves the right at all times to reject any Order, in whole or in part, at its sole discretion.
2.5 Any quotation by the Seller for the provision of Goods and/or Services will be deemed to be:
2.5.1 an invitation to treat (and shall not be an offer) by the Seller to supply Goods and/or Services on and subject to these Conditions; and
2.5.2 will be valid for 14 days from the date of issue and is subject to any increase in price by the supplier and any Goods withdrawn by the supplier prior to the date of delivery.
2.6 The Order shall only be deemed to be accepted when the Seller issues the Sales Order or, if earlier, an invoice or Delivery Note, at which point the Contract is formed.
2.7 Any descriptive matter, advertising or promotional materials produced by the Seller are for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract or have any contractual force.
3.1 The price for the Goods and/or Services will be as set out in the Sales Order (the “Price”), which Price is subject to any increase by the supplier of the Goods effected prior to the date of delivery to or collection by the Buyer. The Seller may increase the Price to reflect any such supplier increase.
3.2 All sales will be subject to VAT where appropriate, at the rate pertaining on the date of delivery to or collection by the Buyer.
3.3 Any prices stated on our Website are stated inclusive of any applicable UK VAT.
3.4 Subject to condition 3.5, the Price includes the costs and charges of delivery of the Goods.
3.5 The Seller reserves the right to charge the Buyer for the cost and charges of delivery in the event that the Delivery Location falls out-with the Seller’s usual delivery area or the Seller’s usual delivery days or times (which usual delivery area and usual delivery days or times shall be determined and amended from time-to-time, as necessary, solely by the Seller). Where the Buyer is charged for delivery such charge shall be noted on the Delivery Note.
4 Payment and Customer Accounts
4.1 Where Goods are being ordered by the Seller to meet the Buyer's specific requirements, a non-refundable deposit may require to be paid at time of Order with the balance to be paid before the time of delivery or collection of the Goods. In such cases the Seller will notify the Buyer of the requirement for the deposit. No Order will be accepted by the Seller until the deposit is paid and by paying the deposit the Buyer waives any cancellation rights and instructs the Seller to process the Order immediately.
4.2 Where the Goods/Services include kitchen design and/or installation, payment of the full Price may be required at least one week before delivery.
4.3 Where the Buyer is purchasing in the course of trade and the Seller has granted the Buyer a credit facility, amounts invoiced and accrued under that credit facility shall be payable by the end of the calendar month following that in which they were invoiced (the ‘due date’) unless specified otherwise. The Buyer acknowledges that any credit facility will have a defined limit and any invoiced amounts causing the amount owed to the Seller to fall over that limit shall be immediately due and payable unless specified otherwise by the Seller.
4.4 The Seller may withhold all further deliveries of Goods or supplies of Services to the Buyer if the Buyer exceeds its credit limit or does not make payments to the Seller by the due date.
4.5 If any payment is not received by the due date daily interest may apply from the date of invoice at the rate of 2% per month and the Seller shall also be entitled to recover all costs or expenses incurred in recovering any overdue amount. Unless agreed with the Seller otherwise, the Seller may apply any payment received to the oldest outstanding invoice.
4.6 The Seller will monitor and record information relating to the Buyer’s trade credit performance and such records may be made available to others to assess applications for credit.
4.7 All payments should be made to the Seller's bank account, details of which are as follows: Name of Account: Sort Code: Account number: No change to this would be intimated by phone or e-mail to guard against fraud. If payment is made by cheque, an administration fee may be applied for any dishonoured cheque.
5.1 Subject always to condition 5.4 below, the Goods will be:
5.1.1 made available for collection by the Buyer at the Seller’s premises set out in the Sales Order on a date agreed in advance by the Seller and the Buyer and specified in the Sales Order; or
5.1.2 if agreed by the Seller and subject to conditions 3.4 and 3.5, delivered by or for the Seller to the Delivery Location on the date or dates specified in the Sales Order.
5.2 The Goods will be deemed delivered:
5.2.1 if collected by the Buyer under condition 5.1.1, on the Seller (or its carrier) making the Goods available for collection at the premises specified in the Sales Order; or
5.2.2 if delivered by or for the Seller under condition 5.1.2, on completion of unloading of the Goods at the Delivery Location.
5.3 The Goods may be delivered by instalments. Any delay in delivery or defect in an instalment will not entitle the Buyer to cancel any other instalment. The Seller reserves the right to charge additional delivery charges for instalment deliveries.
5.4 Where Goods are not held in stock or are being manufactured or adapted to the Buyer’s requirements by the Seller or manufacturer, the Seller will use its reasonable endeavours to meet delivery or collection dates but such dates are approximate only and subject to the Seller’s suppliers’ delivery processes, and time of delivery or collection is not of the essence.
5.5 If the Buyer fails to accept delivery of or collect the Goods as provided in condition 5.1.1 or 5.1.2 on the date or within the period set out in the Sales Order the Seller may, at its option:
5.5.1 store and insure the Goods pending the Buyer taking possession of the Goods, and the Buyer will pay all costs and expenses (including storage and insurance) incurred by the Seller in doing so; and in which case, delivery of the Goods will be deemed to have occurred at 0900 on the first Business Day following such date; and/or
5.5.2 cancel the Contract and the Seller may also, at its discretion, require payment of any manufacturer’s re-stocking charge which may be set off against any deposit.
5.6 The Seller will not be liable for any delay in or failure of delivery or supply caused by:
5.6.1 the Buyer's failure to: (i) make the Delivery Location available; (ii) prepare the Delivery Location as required; or (iii) provide the Seller with adequate instructions for delivery;
5.6.2 the Buyer's failure to collect the Goods from the premises set out in Sales Order; or 5.6.3 an event of Force Majeure.
5.7 Services will be supplied at the location set out in the Sales Order and otherwise at such location as the Seller determines.
5.8 Where Services are provided in connection with any item, including servicing or repairing, the Buyer warrants that it is the owner of such item or is authorised to instruct the Services.
5.9 Where the Services include installation, it is the Buyer's responsibility to ensure that it has all appropriate consents and permissions to allow installation to take place.
5.10 If the Seller is willing to provide the Services on the date or within the period set out in the Sales Order but is unable to do so due to actions or omissions of the Buyer, the Seller may at its option:
5.10.1 reschedule the supply of the Services to such date as the Seller considers appropriate; and/or
5.10.2 cancel the provision of the Services and retain any deposit.
6 Title and risk
6.1 Risk in the Goods will pass to the Buyer on delivery including where the Services include installation.
6.2 Title to the Goods will pass to the Buyer on the later of delivery and when the Seller has received payment in full for the Goods.
6.3 Until title to the Goods has passed to the Buyer, the Buyer will:
6.3.1 hold the Goods in trust for the Seller;
6.3.2 store the Goods separately from all other material in the Buyer's possession;
6.3.3 take all good care of the Goods and keep them in good condition;
6.3.4 insure the Goods: (i) with a reputable insurer; (ii) from the date of delivery; (iii) against all risks; (iv) for an amount at least equal to the price; and (v) noting the Seller's interest on the policy;
6.3.5 ensure that the Goods are clearly identified as belonging to the Seller;
6.3.6 not remove or alter any mark on or packaging of the Goods;
6.3.7 provide the Seller such information concerning the Goods as the Seller may request from time to time; and
6.3.8 permit the Seller or its agents on demand to access any premises where Goods are held to recover them, and if the Buyer breaches such terms and sells the Goods to a third party the sale proceeds of such sale shall be held by it in trust for the Seller. This provision does not prevent a sale in good faith by a trade customer to a third party.
6.4 If, at any time before title to the Goods has passed to the Buyer the Seller has reason to believe the Buyer may cease trading, the Seller may:
6.4.1 require the Buyer at the Buyer's expense to re-deliver the Goods to the Seller; and
6.4.2 if the Buyer fails to do so promptly, enter any premises where the Goods are stored and repossess them. In such an event the Buyer waives any right to claim damages from the Seller for any loss, injury or damage arising therefrom.
7 Returns and Cancellations
7.1 It is the Buyer’s responsibility to confirm that all Goods are suitable for their requirements and meet the Buyer’s required specification (including as to amount) and, in particular, that product dimensions are suitable. Where any Goods are described in an Order or design specification the Buyer's submission of the Order or approval of the design specification can be relied upon by the Seller.
7.2 Subject only to conditions 7.3 and 8 below, Goods must be paid for and may not otherwise be returned and no replacements or refunds will be given other than at the Seller's discretion.
7.3 Where the Buyer is a consumer, the Buyer may cancel any Order placed through the Website (a) at any time within 14 days after delivery of the relevant Goods or (b) prior to commencement of provision of the Services. In such circumstances a full refund will be given less any delivery charges which have been incurred. Note this right of cancellation does not apply when the Goods supplied are manufactured or adapted to meet the specific requirements of the Buyer. To cancel an Order the consumer Buyer must inform the Seller in writing and a form of cancellation notice is set out at the end of these Conditions. The Goods must also be returned to the Seller immediately, in the same condition and packaging in which they were delivered, and at the Buyer's own cost and risk.
8.1 The Seller gives no further warranty in relation to Goods than it obtains, by operation of law or otherwise, to the extent it may obtain and enforce the benefit of any warranty from the manufacturer or the supplier and in relation to a trade customer no warranty of any kind is given in respect of the Goods other than that the Goods are of satisfactory quality at the date of delivery, subject to the extent such warranty may be enforced against the manufacturer or supplier to the Seller. The Seller warrants that Services will be provided to an appropriate standard. Where any manufacturer's warranty is given, it is the Buyer's responsibility to register the Goods with the manufacturer or take any other steps necessary to obtain the benefit of any such warranty.
8.2 The Seller will, at its option, replace or refund the price of defective Goods, provided that and subject to condition 8.4:
8.2.1 the Buyer gives notice in writing to the Seller within three working days;
8.2.2 the Buyer gives the Seller (or its appointed third party) a reasonable opportunity to examine the defective Goods; and
8.2.3 the Buyer returns the defective Goods to the Seller at the Buyer’s expense.
8.3 These Conditions will apply to any replacement Goods supplied under condition 8.2.
8.4 The Seller will not be liable for any failure of the Goods to comply with condition 8.1:
8.4.1 if the defect arises because the Buyer, any of its employees, consultants or other representatives, or any subsequent purchaser of the Goods, fails to follow the Seller’s oral or written instructions as to the storage or maintenance of the Goods or (if there are none) good trade practice regarding the same, or fails to adhere to any term of the Contract;
8.4.2 if the Buyer, any of its employees, consultants or other representatives, or any subsequent purchaser, alters or tampers with the Goods without the written consent of the Seller;
8.4.3 where the Buyer, any of its employees, consultants or other representatives, or any subsequent purchaser uses or consumes any of the Goods after notifying the Seller that they do not comply with condition 8.1.
8.5 Except as set out in this condition 8 the Seller:
8.5.1 gives no warranty in relation to the Goods or Services; and
8.5.2 will be under no liability for their failure to comply with the warranty in condition 8.1.
9.1 The Seller does not exclude its liability:
9.1.1 for death or personal injury caused by its negligence; or
9.1.2 for breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
9.1.3 for defective products under the Consumer Protection Act 1987; or
9.1.4 for fraud or fraudulent misrepresentation; or
9.1.5 for any other liability which cannot be lawfully excluded or limited.
9.2 Subject to condition 9.1:
9.2.1 the Seller shall under no circumstances whatsoever be liable to the Buyer whether in contract, delict (including negligence), breach of statutory duty, or otherwise, for any loss of profit, business revenue or any indirect, secondary or consequential loss, damage, expense or liability arising under or in connection with the Contract;
9.2.2 the Seller’s total liability to the Buyer in respect of all losses arising under or in connection with the Contract, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid under the Contract; and
9.2.3 the Buyer shall indemnify the Seller from and against any liability to a third party arising from the Buyer’s or any of its employees’, consultants’ or other representatives’ actions or omissions.
10 Force Majeure
The Seller will not be liable if delayed in or prevented from performing its obligations due to an event of Force Majeure.
No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
In the event of conflict, the terms of these Conditions prevail over those of the Sales Order not added by, or expressly accepted by, the Seller.
13 Entire Agreement
The Contract constitutes the entire agreement between the parties in relation to its subject matter. No other terms apply. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract.
14 Governing Law & Jurisdiction
The Contract and any dispute or claim arising out of, or in connection with it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of Scotland and the parties irrevocably agree that the courts of Scotland shall have non-exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including noncontractual disputes or claims).
Form of cancellation notice
To: Pearsons of Duns Limited, The Cheeklaw Centre, Station Road, Duns, Berwickshire TD11 3EL
I/We [*] hereby give notice that I/We [*] cancel my/our [*] contract of sale of the following goods:
Ordered on [*]/received on [*]:
Name of consumer(s):
Address of consumer(s):
Reason for cancellation:
Signature of consumer(s) (only if this form is notified on paper):
Delete as appropriate