The customer's attention is drawn in particular to the provisions of clause 11.
1.1 In these terms and conditions (Terms), the following definitions apply:
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Terms.
Customer: the person or firm who purchases the Goods from the Supplier.
Goods: the goods (or any part of them) set out in the Order, including frames, lenses, contact lenses, sunglasses, accessories and associated items.
Order: the Customer's order for the Goods, as set out [in the Customer's purchase order form (Purchase Order Form).
Services: the services supplied by the Supplier as set out in the customer’s purchase order form including but not limited to vision tests,.
Specification: any specification for the Goods, including the Customer’s prescription, fitting and any other individually provided aspect of the Goods and/or Services.
Supplier: Kings Hill Opticians Ltd, incorporated in England, registered address 2 Liberty Square, Kings Hill, West Malling, Kent ME19 4AU, registration number 06501309.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods and/or Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier takes payment, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that he has not relied on any representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 14 business days from its date of issue.
3.1 The Goods are displayed in the Supplier's premises and may be modified by any applicable Specification.
3.2 The Supplier reserves the right to amend the Goods or Specification if required by any applicable statutory or regulatory requirements.
4.1 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.
4.2 The Customer shall collect the Goods from the Supplier's premises within 28 business days of the Supplier notifying the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the Customer’s collection of the Goods.
4.4 The Supplier shall not be liable for any delay or failure to deliver the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions.
4.5 If 28 business days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting administrative and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.6 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately.
5.1 The Supplier warrants that on Delivery, and for a period from the date of delivery (Warranty Period), the Goods shall have the benefit of a manufacturer warranty, the length of which shall be determined by the manufacturer. During the Warranty Period, the Goods are warranted to:
(a) conform with the Specification, and;
(b) be free from material defects in design, material and workmanship.
5.2 If the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(a) the Supplier is given a reasonable opportunity of examining such Goods; and
(b) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods within the terms of the manufacturer’s warranty.
5.3 The Supplier shall not be liable for Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) a period of 24 months has passed since Delivery;
(b) the Customer makes any further use of such Goods after giving notice in accordance with clause Error: Reference source not found;
(c) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, use and maintenance of the Goods;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6.1 The Supplier shall supply the Services in accordance with the Specification in all material respects.
6.2 The Supplier has the right to make changes to or suspend the Services in order to comply with any applicable law or regulation or at its own discretion and it shall notify the Customer accordingly. This does not affect the Customer’s obligation to pay for any invoices already sent or the Membership Fee.
7. MEMBERSHIP OPTION
7.1 The Membership Fee relates to the provision of Goods and/or Services as follows:
(a) The minimum term for Membership shall be 12 months,
(b) The Membership Fee shall be paid by direct debit from the Customer’s nominated bank account, such mandate to be completed prior to the provision of any Goods and/or Services under the Membership,
(c) Membership shall provide for such discounts and promotions to the Supplier’s Goods and Services as the Supplier in its sole discretion shall decide from time to time, such details shall be provided to the Customer prior to the Customer’s application for Membership.
7.2 The Customer may notify the Supplier that he wishes the period to be extended by a further 12 month period or terminate Membership. Failure to notify the Supplier that the Customer wishes to terminate will result in a renewed 12 month period of Membership.
7.3 Early termination of the Membership will result in the Customer being liable to repay to the Supplier the costs involved in the initial contact lens fitting/aftercare and any discounts received on glasses or sunglasses.
7.4 For the avoidance of doubt, the Customer will be liable for any failure to collect any Goods or attend appointments which form part of the Membership.
8. PRICE AND PAYMENT
8.1 The price of the Goods shall be the price displayed at the Supplier’s Premises or set out in the Order.
8.2 The price of the Goods and/or Services shall include VAT at the prevailing rates such as are applicable to the Supplier’s business.
8.3 The Customer must pay for the Goods either: (a) in advance by payment made at the Supplier’s premises, or (b) by way of the Membership Fee in accordance with clause 7.1.
8.4 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above National Westminster Bank Plc’s base rate from time to time.
8.5 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
9. CANCELLATION AND REFUNDS
9.1 The Customer will not be able to cancel an Order in relation to made-to-measure Goods once the Order is accepted. For the avoidance of doubt, made-to-measure Goods include any Lindberg frames and Essilor lenses.
9.2 The Supplier may in its sole discretion be able to offer an exchange of frames to the same value if notified of a request within 24 hours of the Order being accepted but this will not include any refund towards lenses. The following is the maximum level of refund upon cancellation which the Supplier may apply following the Order being made:
(a) 75% refund within 24 hours,
(b) 50% within 48 hours,
(c) 25% within 72 hours.
Any refund will be paid by cheque only within 4-6 weeks.
9.3 The Supplier may cancel an Order before non-made-to-measure Goods are delivered or before the start date for the Services due to Force Majeure event or unavailability of stock or key personnel or materials.
9.4 Any appointment for Services may be cancelled at any time prior to 24 hours before the appointment at no cost. A failure to cancel an appointment more than 24 hours or failure to attend an appointment may result in the Supplier applying an administrative charge.
10.1 Re-glazing refers to the practice of supplying lenses to pre-owned frames. The Supplier will accommodate the Customer on such a request as far as is practicably possible given the condition of the frames, subject to 10.2 below.
10.2 The Supplier will not be liable for any faults including breakages in relation to the pre-owned frames given that all types of frames deteriorate with age and will have been subject to the Customer’s own usage for an indeterminate period of time. The warranty set out at clause 5 above is limited to the lenses supplied in re-glazed frames.
11. LIMITATION OF LIABILITY
11.1 The Supplier shall not be liable in any circumstances for provision of goods supplied by a third party if the Customer has taken any part of the Specification for completion by such a third party.
11.2 The Supplier shall under no circumstances whatever 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 consequential loss arising under or in connection with the Contract.
11.3 The Supplier's total liability to the Customer in respect of all other 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 the price of the Goods.
11.4 The Supplier shall not be liable where the Customer has failed to notify the Supplier of a medical condition that is later found to affect the Goods to the extent that the Specification requires alteration or replacement.
12.1 The Supplier aims to respond and resolve complaints within 10 working days with a maximum period of 6 months in which to resolve the complaint with the Customer’s agreement.
12.2 The Supplier will supply the Customer with the complaints procedure within the time frame at 12.1 and this will set out the process in full.
13. FORCE MAJEURE
The Supplier shall not be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable including the default of suppliers or subcontractors.
14.1 Any notice given under this agreement shall be in writing and shall be delivered by hand, transmitted by email, or sent by pre-paid first class post or recorded delivery post to the address of the party as referred to in the order.
14.2 If any provision or part of any provision of this agreement (or part of any provision) is found by any court or other body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
14.3 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy.
14.4 Each person that has rights under this agreement is acting on his own behalf.
14.5 A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this agreement.
14.6 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England.