Terms Of Sale- Muffle
THESE TERMS SET OUT THE BASIS ON WHICH MUFFLE SELLS PRODUCTS TO YOU THROUGH OUR WEBSITE [WWW.MUFFLE.CO.UK]. PLEASE READ THESE TERMS CAREFULLY.
PLEASE DIRECT YOUR ATTENTION TO THE CANCELLATION RIGHTS IN CLAUSE 11 AND THE LIMITS OF OUR LIABILITY IN CLAUSE 12.
In these Terms the following terms shall have the following meanings hereunder:
“Muffle”, “we”, “us” or “our” means Muffle, a trading name of Muffle Limited of Network House, Monkton Road, Wakefield, WF2 7AL
“Contract” means the contract between Muffle and the Customer as defined in Clause 3.1 below.
“Customer”, “you” or “your” means the customer ordering and purchasing the Products.
“Delivery Terms” means the full terms that apply to Muffle's deliveries of ordered Products hereunder; full details can be found on the Website.
“Gross Negligence” means an act or omission implying either a failure to pay due regard to serious consequences, which a conscientious contracting party would normally foresee as likely to ensue, or a deliberate disregard of the consequences of such an act or omission.
“In Writing” means communication by document signed by both Parties or by letter, fax or electronic mail.
“Order” means a completed order for Product(s) placed by the Customer whether through our Website, or any other means.
“Party” means Muffle or the Customer individually, and “Parties” means Muffle and the Customer jointly.
“Product(s)” means the products that we sell through our Website.
“Terms” means the terms and conditions of sale set out in this document.
“Website” means [URL] (or such other URL as we may specify from time to time) that is operated by us or on our behalf. We will do our best to check our website for viruses but we do not warrant that the website is free from viruses or other malicious content.
2.1 The Website is directed to residents of the United Kingdom. For those ordering from outside of the United Kingdom, you do so with the understanding that you are entering into a contract with a UK based, owned and operated company. We require an up to date email address in order to be able to communicate with you.
2.2 The Customer must be over 18 years old to purchase Products via the Website and by placing an Order the Customer confirms that this is the case. If you order Products on behalf of a company, organisation or other entity, then “you” includes you and such company, organisation or other entity. Further, you represent and warrant that you are authorised to legally bind the company, organisation or other entity to our agreement (including these Terms). In consideration hereof, by purchasing Products through the Website you agree to our agreement (including these Terms) on behalf of yourself and the company, organisation or other entity.
2.3 These Terms set out the basis on which Muffle sells Products to the Customer. The Customer is advised to read these Terms carefully. By submitting an order for and/or purchasing Products through the Website, the Customer will be asked to accept these Terms whereby the Customer agrees to be bound by these Terms. If the Customer does not accept these Terms, the Customer will not be able to order or purchase any Products through the Website.
2.5 Muffle takes reasonable steps to display as accurately as possible the colour, appearance and other detailing of the Products in the images that appear on the Website. However, Muffle does not guarantee that the images that appear on the Website exactly reflects the colour, appearance or detailing of the physical Product. Any information on the Website regarding specifications of the Products is included as a guide only. If you are concerned about the precise specifications we recommend that you contact us prior to placing an Order. We reserve the right to amend the specification of the Products if required by any applicable statutory or regulatory requirement. To the extent permitted by law, Muffle accepts no liability associated with the variations described in this clause 2.5.
2.6 Specified functions and properties of the Products are contingent upon and valid only if installation of the Products have been carried out in accordance with the instructions and any guidelines including but not limited to those provided by the manufacturer, either accompanying the Product or displayed on the Website.
2.7 These Terms are only available in the English language. We recommend the Customer to print a copy of these Terms or save them to your computing device for future reference.
THE PARTIES’ CONTRACT AND ITS FORMATION
3.1 Any and all Orders accepted by Muffle are subject to these Terms and any additional terms that the Parties have agreed upon In Writing separately (together the “Contract”).
3.2 Each Order is placed via the Website. The Customer has the opportunity to check and correct any input errors of the relevant Order up until the point at which the Customer submits the Order by clicking the button stating “confirm order and pay” (or similar). The Customer is responsible for ensuring that your order and any specification submitted by you is complete and accurate before confirming the same. Once you have clicked the button stating “confirm order and pay” (or similar), you will need to pay for the Products which you have ordered via the Website.
3.3 The Customer’s Order is an offer to purchase Products from Muffle. When the Customer places an Order, Muffle will send you an email acknowledging receipt of such Order, together with an Order number and details of the Product(s) the Customer has ordered. Unless we have notified you that we do not accept your Order or you have cancelled it in accordance with our returns policy, we accept your Order when the Products begin their manufacturing process or, for off the shelf products, are picked for shipping.
3.4 Muffle may choose not to accept your Order for any reason and Muffle will not be liable to you or to anyone else in such case. If Muffle does not accept your Order, Muffle will refund any money paid in connection with such Order as soon as possible.
3.5 The Contract is formed when Muffle accepts your Order. The processing of your payment and acknowledgment of receipt of your Order does not constitute legal acceptance by Muffle of your Order.
3.6 If Muffle accepts your Order, Muffle has a legal duty to supply the ordered Products in conformity with the Contract.
PRICES AND DELIVERY CHARGES, RETENTION OF TITLE
4.1 Prices of the Products shall be the prices displayed on the Website at the time when the Customer places the relevant Order of Products. The Customer can choose to see prices on the site be displayed with or without the applicable rate of VAT.
4.2 Unless expressly stated otherwise the prices for Products displayed on the Website exclude delivery charges. Delivery charges vary depending on the Product(s) you order, the delivery address and the delivery method you select – as further detailed in Muffle's Delivery Terms. Mixing items labelled as ‘free shipping’ and those which are not so labelled will incur delivery charges
4.3 Muffle may update prices of the Products displayed on the Website at any time.
4.4 Despite our best efforts, Products may occasionally be mispriced. If this happens then we will not be obliged to supply the Products at the incorrect price or at all. We will (at our discretion) either cancel your Order and refund the price you have paid or endeavour to contact you and ask you whether you wish to continue with the Order at the correct price. If we are unable to contact you or you do not wish to continue with the Order at the correct price, we will cancel your order and refund the price you have paid.
4.5 All Products are subject to availability. If a Product is not in stock and unlikely to be restocked, we will cancel your Order and refund the price you have paid for such Product.
4.6 Each Product remains Muffle's property until you have paid for it in full or Muffle has delivered the Product to you (whichever occurs later and to the fullest extent that such retention of title is valid under applicable law), after which you own the Product. The retention of title under this Clause shall not affect the passing of risk under Clause 5.6 below.
5.1 The specific delivery terms that apply to your Order will depend upon the delivery address and the delivery method you select. Muffle only delivers to the areas indicated in Muffle's Delivery Terms (which can be found on the Website). Delivery will be completed when we deliver the Products to the address/pick-up place you have specified in your Order. We sub-contract our delivery services to third party service providers, however Muffle will always remain responsible for the performance of the delivery service. The restrictions and liabilities regarding deliveries from us that are not signed for upon delivery are further set out in our Delivery Terms.
5.2 The Products will be displayed with an expected delivery time on the Website. If Muffle anticipates that it will not be able to deliver the Products within the agreed time for delivery, Muffle will notify the Customer thereof without undue delay, stating the reason for the delay and, if possible, the time when delivery can be expected.
5.3 Subject to the Delivery Terms, Muffle will use reasonable endeavours to deliver ordered Products on any specified date agreed between the Parties, or if no date is specified, within the delivery time for the relevant Product as displayed on the Website when the Customer places its Order. In the case of circumstances beyond Muffle's reasonable control (for example, adverse weather conditions, unpredictable delays caused by traffic congestion, road works, diversions or mechanical breakdowns, in each case to the extent beyond Muffle's reasonable control) Muffle may not be able to deliver the Products within these time scales. In such case Muffle will not be liable for any delay or failure to deliver the Products if the delay or failure is wholly or partly caused by such circumstances. In the event that a delivery does not take place, the Parties shall agree on an alternative delivery date.
5.4 If you know that you will be unable to accept delivery of the Products at the time for delivery, you shall forthwith notify Muffle thereof by reaching out to Muffle's delivery contractor or our customer service contact number as further detailed on the Website and/or in Muffle's acknowledgement of receipt of your Order, stating the reason and, if possible, the time when you will be able to accept delivery. If we are unable to deliver the Products as a result of your action or inaction (for example that you are not present at your property), an alternative delivery date will be arranged and we reserve the right to charge you further fees in respect hereof.
5.5 Notwithstanding anything to the contrary herein, the risk for the Products shall pass from the Company to the Customer at the time of delivery. This means that on delivery of the Products to you or collection of the Products by you (as the case may be), the Products shall be at your risk and responsibility and you will be responsible for their safekeeping and Muffle will not be responsible for any damage or defect arising from incorrect storage.
5.6 Upon delivery or the Customer’s collection of purchased Products, the Customer shall inspect the Products and check that they match the relevant Order. Upon receipt of the Customer’s notice In Writing, pursuant to clause 7.2, Muffle shall remedy any deficiencies in the Products as set out in clause 7 below.
6.1 Unless otherwise agreed by the Parties In Writing, payment shall be made in advance before your Order can be processed as further set out on the Website. Subject to Clause 4.1 above, the total cost of your Order is the price of the ordered Products and applicable delivery charges.
6.2 Payment can be made by most major credit or debit cards as further described on the Website. Muffle is not responsible for any charges applied by the card issuer as a result of our processing of the credit/debit card payment in accordance with your Order.
DEFECTIVE PRODUCTS : DAMAGES ON DELIVERY
7.1 In the event of the discovery of a defect or damage on arrival, subject to the requirements and time limits below, please contact Muffle as set out in clause 12.1. Photographic evidence must be supplied including the original packaging and product to be assessed by Muffle.
7.2 If following the required inspection upon delivery, as required at clause 5.6, shows that the Products or parts thereof are damaged, defective or otherwise not in accordance with the Contract, the Customer shall notify Muffle as soon as reasonably possible. Should the Customer fail to give notice within two (2) working days of receipt, the products shall be deemed to have been accepted by the Customer.
7.3 In the event of discovery of a defect, other than covered by clause 7.2, if within 30 days of receiving the Product, provided that you can provide proof of the defect and subject to Clause 2.6 and clause 7.7, Muffle will accept a return and you will be entitled to a replacement or a full refund.
7.4 In the event of discovery of a defect, other than covered by clause 7.2, after 30 days but within twelve (12) months of you receiving the Product, provided that you can provide proof of the defect and subject to Clause 2.6 and clause 7.7, Muffle, at its sole discretion, will attempt to repair, using reasonable endeavours, or replace the Product in question. If Muffle is unable to do so, you may, at Muffle’s sole discretion, be entitled to a full refund.
7.5 If you purchase a Product as a consumer (which means if you are acting for purposes which are outside of trade, business, craft or profession) the above rights do not affect any statutory consumer rights you may have.
7.6 Any return of a product that is found to be faulty will be arranged by Muffle, including the costs of postage and suitable packaging, such packaging being of the same standard as originally used by Muffle. Any reimbursement of costs will be at Muffle’s discretion and only when the product has been returned. Once the panel has been received back into our warehouse, we will issue a refund. We reserve the right to make any deductions from the refund where there are fixings missing or damages found to be caused by the consumer. If found to be genuine fault or damage on receipt, the consumer will be entitled to either a refund or replacement (subject to inspection).
7.7 Upon notification of any defect with the Product, Muffle reserves the right to inspect the Product or if installed, the installation of the Product and the Product upon reasonable notice being provided to you. Such inspection will either be done directly by Muffle or via an appointed agent and Muffle will be responsible for any associated costs of the inspection. Subject to any statutory rights, in the event that access is refused we reserve the right to refuse to deal with any claim brought.
DAMAGE CAUSED BY THE PRODUCTS
8.1 Muffle shall not be liable for any damage to property caused by the Products after it has been delivered to the Customer. Nor shall Muffle be liable for any damage to products manufactured by the Customer or to products of which the Customer’s products form a part. If Muffle incurs liability towards any third party for such damage to property, the Customer shall indemnify and hold Muffle harmless from and against any liability associated with any claim or allegation that Muffle is responsible for any such damage to property.
8.2 The Customer shall be obliged to let itself be summoned to the court or arbitral tribunal examining claims for damages lodged against Muffle on the basis of damage allegedly caused by the Products.
8.3 The limitation of Muffle's liability in the first paragraph of this Clause shall not apply where Muffle has been guilty of Gross Negligence.
FORCE MAJEURE (EVENTS BEYOND Muffle's CONTROL)
9.1 Muffle shall be entitled to suspend performance of any of its obligations under the Contract to the extent that such performance is impeded or made unreasonably onerous by force majeure, meaning any of the following circumstances: industrial disputes and any other circumstance beyond the control of Muffle such as (including, without limitation) fire, war, extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power, currency and export restrictions, epidemics, natural disasters, extreme natural events, accidents, terrorist acts, cyber-attacks and defects or delays in deliveries by sub-contractors caused by any such circumstance referred to in this Clause. In addition hereto, Muffle shall have no liability to you for any failure or delay in delivery or for any damage or defect to Products delivered under the Contract, in each case that is caused by any event or circumstance beyond our reasonable control (including, without limitation, any such circumstance mentioned in this Clause above).
10.1 The Customer is advised to keep the proof of purchase of purchased Products.
10.2 For consumer orders only: The customer may cancel an order (or part of it) by confirmation of email or cancellation form, contact details in clause 10.3. This must be confirmed no more than 24 Hours after confirmation of Purchase Order. Failure to confirm cancelation by this time frame may result in no cancellation being granted, as all products are bespoke manufactured, and restocking is not an option.
10.3 For consumer orders only: In order for the Customer to cancel an Order (or part of it) and arrange return pursuant to Clause 10.2 above, the Customer shall email us at email@example.com or submit a cancellation-form to us. Such cancellation-form is available to the Customer via the Website and is accompanied with instructions how such application shall be submitted available on the FAQ section and on your order confirmation.
10.4 For consumer orders only: If the Customer’s Order comprises multiple delivery shipments, the 14 day cancellation period for the Products in such Order runs from the date of delivery of the last shipment to the Customer.
10.5 For consumer orders only: You lose your right to cancel an Order after the expiry of the 14 day period referred to in Clause 10.2 above. However, the foregoing does not affect your rights if the Products are defective (see Clause 7 above). In order for your cancellation to be made in due time, you must send your communication concerning your exercise of the right to cancel before the cancellation period has expired.
10.6 For consumer orders only: Following cancellation, Muffle will refund you the price paid for the cancelled Order (or part of the order cancelled). However, you will be responsible for the cost of returning the Products, unless a Product is defective or not as described in which case we will refund any reasonable return costs you incur when returning the Product to Muffle.
10.7 For consumer orders only: Muffle will pay the refund within fourteen (14) days after the day Muffle receives the Products you returned to us. If you notify us of your cancellation before you have received the Products (and the Products have not yet been dispatched to you), Muffle will pay the refund within five (5) business days as from the date when you notified us to cancel your Order. Muffle will refund you on the credit/debit card used to pay for the Order.
10.8 For consumer orders only: You must arrange for the return of the Products as soon as possible and in any event no later than 14 days after the day on which you cancel your Order.
10.9 In case of the Customer cancels an Order, the Customer must take reasonable care of the Products at all times while they are in the Customer’s possession. This means that is not allowed to use the Products except to the extent reasonably necessary to inspect and examine the Products.
10.10 For consumer orders only: Muffle reserves the right to make a deduction from the amount of any refund for loss in value of the Products returned if the Products show signs of unreasonable use. In consideration hereof, unreasonable use of the Products includes handling the Products beyond what is necessary to establish the nature, characteristics and functioning of the Products. Unreasonable use includes where a Product has been installed so that suspension accessories have been inserted on the back of the Product. Muffle also reserves the right to require proof of identity.
10.11 For consumer orders only: The Customer is advised that his/her consumer rights pursuant to applicable mandatory law are not affected.
Muffle's LIABILITY AND LIMITATION OF LIABILITY
General liability provisions
11.1 Nothing in the Contract limits or excludes Muffle's liability for fraud or fraudulent misrepresentation or for death or personal injury resulting from Muffle's negligence or liability for fraudulent misrepresentation or for any other liability which cannot be limited or excluded by applicable law. If Muffle fails to comply with the terms of the Contract, Muffle is responsible for loss or damage that you suffer and that is a foreseeable result of Muffle's breach of the Contract.
Limitation of Muffle's liability applicable only if you purchase Products as a consumer
11.2 Notwithstanding anything to the contrary in these Terms or any other documents included in the Contract, if you purchase Products as a consumer (which means if you are acting for purposes which are outside of trade, business, craft or profession) there shall be no liability for Muffle towards the Customer for loss of production, loss of profit, loss of use, loss of contracts or for any other consequential, financial or indirect loss or damage whatsoever. The Customer is advised that he/she may have certain legal rights regarding claims in respect of losses caused by Muffle's negligence or failure to carry out its obligations under the Agreement. Nothing in the Contract is intended to limit the Customer’s legal rights as a consumer which may be applicable for the Contract.
Limitation of Muffle's liability applicable only if you purchase Products as a business customer (trader)
11.3 Notwithstanding anything to the contrary in these Terms or any other documents included in the Contract, if you purchase Products as a business customer, i.e. if you act (or act on behalf of a business customer) for purposes relating to trade, business, craft or profession, there shall be no liability for Muffle towards the Customer for loss of production, loss of profit, loss of use, loss of contracts or any consequential, financial or indirect loss or damage whatsoever (whether in contract, tort (including negligence), breach of statutory duty or otherwise). Further, the aggregate liability of whatever nature that Muffle can be responsible for in respect of the Contract cannot in aggregate exceed one hundred (100) per cent of the purchase price of the Products. You also acknowledge and agree that all Muffle's obligations to you are set out in the Contract.
11.4 Muffle will not be responsible to you or – if you have undertaken work for another person or entity – to any other person or entity for the use or installation of any Products by you (or on your behalf). Consequently, you agree to hold Muffle harmless and indemnify Muffle against any liability associated with any claim or allegation that Muffle is responsible for any failings in the installation or use of Products.
11.5 Except as set out in the Contract, all other terms, warranties, representations and conditions implied by law or otherwise (including fitness for purpose) are excluded to the fullest extent permitted by law. In particular, we will not be responsible for ensuring that the Products are suitable for your purposes.
NOTICES AND COMPLAINTS
12.1 If you have any questions, complaints or concerns with respect to your Order or these Terms, please contact Muffle as follows:
By telephone on 01924 938088 (lines are open 8am-5pm weekdays)
By email at firstname.lastname@example.org
by ordinary mail at Muffle, 21 Appleton Court, Calder Business Park, Durkar, Wakefield, WF2 7AR United Kingdom.
12.2 Any formal legal notices regarding the Contract should be sent to the address above
12.3 If you make a complaint, Muffle will endeavour to keep you informed by email at each stage of the handling process and will endeavour to fully resolve your complaint as soon as possible.
12.4 If we have to contact you or give you notice In Writing, we will do so by email or post at our discretion.
13.1 If any provision of the Contract is found to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
13.2 You may not assign or transfer your rights or obligations under the Contract unless approved In Writing by Muffle. Muffle may assign or transfer this Contract to someone else. This means that Muffle can transfer its rights to another organization which will perform the obligations under the Contract.
13.3 The ownership of all intellectual property rights relating to the Products shall remain with Muffle, their designer, manufacturer or rights holder, if different.
13.4 If you breach the Contract and we take no action, we will still be entitled to use our rights and remedies in any other situation where you breach the Contract.
13.5 Muffle may update, vary and amend these Terms from time to time without prior notice. Each time you complete an Order, the Terms in force at that time will apply (as set out on our Website). The Customer is advised to check the Website to ensure that he/she understands which Terms apply.
DISPUTES AND GOVERNING LAW
14.1 The Contract (including these Terms) shall be governed, construed and interpreted in all respects according to the substantive laws of England and Wales whose courts shall have sole jurisdiction. For the avoidance of doubt, Muffle may bring proceedings against any defaulting party in any territory.
14.2 If you purchase Products as a consumer (which means if you are acting for purposes which are outside of trade, business, craft or profession) you are advised that you may have certain legal rights with respect to governing law and venue for disputes. Nothing in the Contract is intended to limit the Customer’s legal rights as a consumer in respect hereof.