1 Definitions
1.1 In these conditions (unless the context otherwise requires):
(a) "Buyer" means the person, firm or Business with whom the Contract is made;
(b) "Business" means Orange Clay (TM) and also (where the context so permits) its assigns and any sub-contractor for the said Business;
(c) "Business Premises" means the premises 124 City Road, London, EC1V 2NX or the most current registered business address
(d) “Consumer” means any individual acting for purposes which are wholly or mainly outside that individual's trade, business, craft or profession
(e) "Contract" means the contract between the Buyer and the Business for the sale and purchase of the Goods;
(f) "Goods" means the goods (or any instalment or part of them) which are the subject of the Buyer's order and which are to be supplied to the Buyer by the Business under these conditions;
1.2 Words in the singular shall include the plural and vice versa, references to any gender shall include the others and references to legal persons shall include natural persons and vice versa.
1.3 The headings in these conditions are intended for reference only and shall not affect their construction.
2 General
2.1 All orders placed by the Buyer for Goods via the Business's website are on the basis of these terms and conditions.
2.2 These conditions shall apply to the Contract to the exclusion of any other terms and conditions contained or referred to in any order, letter, form of contract or other communication sent by the Buyer to the Business and the provisions of these conditions shall prevail unless expressly varied in writing.
2.3 Any concession made or latitude allowed by the Business to the Buyer shall not affect the strict rights of the Business under the Contract.
2.4 If in any particular case any of these conditions shall be or be held to be invalid or shall not apply to the Contract the other conditions shall continue in full force and effect.
3 Orders
3.1 No order shall be binding on the Business unless and until it has been accepted by the Orange Clay, this may include but is not limited to an order acknowledgement uploaded onto the Current Orders’ section of the ‘My Account’ page of the Orange Clay Store web site.
3.2 The processing of the Buyer’s payment does not constitute legal acceptance of the Buyers order.
3.3 The Buyer may place an order to purchase a product advertised for sale by following the onscreen prompts after clicking on the item the Buyer wishes to purchase. The Buyer will have an opportunity to check and correct any input errors in their order up until the point at which they payment has been accepted.
3.4 All orders placed by the Buyer for Goods from the Business are subject to acceptance by the Business (as described in clause 3.1). The Business may choose not to accept the Buyers order for any reason (including as set out in clause 4.4) on written notice to the Buyer and will not be liable to the Buyer or to anyone else in those circumstances provided that, if the Buyer has already paid for Goods the Business will refund the price that the Buyer has paid, including any delivery charges.
4 Prices
4.1 All prices are detailed during the checkout process. Value added tax and this will be charged by the Business and will be payable by the Buyer at the applicable current rate.
4.2 The price payable for the Goods ordered by the Buyer is as quoted on the Business website before the time the Buyer submits their order. The price of Goods and additional charges are itemised on the website, including delivery charges, which will be confirmed prior to submission of the Buyer's order.
4.3 The Business reserves the right to change the price of Goods including special materials at any time due to market conditions but will confirm the prevailing price with the Buyer before accepting their order. The Business is not obliged to accept the Buyer’s order for such Goods and may decline it or limit the order quantity.
4.4 Occasionally an error may occur and goods may be either incorrectly priced or described in which case the Business will not be obliged to supply the Goods at the incorrect price or in accordance with the incorrect description or at all. The Business reserves the right to correct any errors from time to time. The Business will (at their discretion) either choose not to accept the Buyer's order or to terminate the contract and refund the price the Buyer has paid or use reasonable endeavours to contact the Buyer and ask them whether they wish to continue with the order at the correct price or correct description. If the Business is unable to contact the Buyer or the Buyer does not wish to continue with the order at the correct price or correct description, the Business will cancel the order or terminate the contract and refund the price the Buyer has paid.
5 Additional costs
5.1 The Buyer shall indemnify the Business in respect of any loss, cost or expense incurred by the Business as a result, directly or indirectly, of the Buyer's instructions or lack of instructions or through any failure or delay whatsoever in taking delivery or through any other act, neglect or default on the part of the Buyer, its servants, agents or employees.
6 Intellectual property
6.1 The Buyer shall indemnify the Business against all costs, claims, losses, expenses and damages incurred by the Business or for which it may be liable due to or arising directly or indirectly out of any infringement or alleged infringement of patents, trade marks, copyright, design right or other intellectual property right occasioned by the importation, manufacture or sale of the Goods if made to the specification or special requirements of the Buyer.
7 Terms of payment
7.1 Payment for the price of the Goods and any delivery charges shall be in advance. Payment can be made by most major credit or debit cards, by completing the relevant details on the checkout page.
7.2 By using a credit / debit card to pay for the Buyer’s order, the Buyer confirms that the card being used is theirs or that they are authorised to use it.
7.3 All credit/debit card holders are subject to validation checks and authorisation by the card issuer. If the issuer of the card refuses to authorise payment the Business will not accept the Buyer’s order. The Business will not be obliged to inform the Buyer of the reason for the refusal, and the Business will not be liable for the item not being delivered or provided to the Buyer. The Business is not responsible for the card issuer or bank charging the holder of the card as a result of the Business’s processing the Buyer’s credit/debit card payment in accordance with the Buyer’s order.
7.4 The Business recommends that the Buyer does not communicate their payment card details to anyone, including the Business, by email. Subject to clause 13.6, the Business cannot be responsible for any losses the Buyer may incur in transmitting information to us by internet link or by email. Any such loss shall be entirely the Buyer’s responsibility.
7.5 The Buyer is responsible for all orders placed by their employees and for any purchases made on cards issued to the Buyer (including Trade UK cards) and the Business is not bound by any individual order limit that the Buyer may impose on their employees.
7.6 N/a
7.7 N/a
7.8 N/a
8 Delivery
8.1 The Business aims to deliver the Goods in accordance with the Buyer’s order, usually within the stated delivery time (except in exceptional circumstances see 19) but not more than 14 days after the Business’s acceptance of the Buyers order, unless otherwise agreed between the Buyer and the Business, subject always to clause 9 and 19. The Business reserve the right to deliver an order in instalments by separate delivery shipments.
8.2 Any period for delivery shall be calculated from the time of the Business's acceptance of the Buyer's order.
8.3 Before placing an order, please refer to the delivery options set out on the Business’s website to ensure that the Business can deliver to the Buyer’s address. A valid signature may be required on collection or delivery. In the unlikely event that the Buyer does not receive all the Goods within the stated delivery time, the Buyer must notify the Business immediately. Orange Clay advises that the Buyer does not schedule or commence activity on the basis of this order and effective delivery date. All times dates or periods given for delivery of the Goods are given in good faith but without any responsibility on the Business's part.
8.4 For reasons of health and safety and to avoid any property damage, items can only be delivered to the exterior of a ground floor location at the delivery address.
8.5 The Buyer must do all that they reasonably can to enable delivery to take place at the given time and place. If the Buyer delays delivery or delivery fails because the Buyer has not taken appropriate steps, the Business will try to arrange for an alternative delivery date within the time specified in the current policy. If delivery fails as a result of circumstances within the Buyer’s reasonable control, the cost of any re-delivery shall be borne by The Buyer. If the Business is unable to arrange a date for re-delivery they may cancel the Buyer’s order and refund to the Buyer the price that they have paid for the Goods, less the failed delivery costs.
8.6 All times dates or periods given for delivery of the Goods are given in good faith but without any responsibility on the Business's part.
8.7 Time of delivery shall not be of the essence of the Contract.
8.8 No liability (whether in contract or for negligence or otherwise howsoever) for loss of or damage to the Goods occurring prior to the Goods being handed over by the Business to its carrier of transportation to the Buyer or, if the Business's own vehicles are used to deliver the Goods, delivery to the Buyer or for any claim that any item delivered pursuant to the Contract is defective or is otherwise not in accordance with the Contract (being a defect or loss, damage or non-compliance which would be obvious upon a reasonable inspection of the Goods) or for non-delivery will attach to the Business unless claims to that effect are notified in writing by the Buyer to the Business (and in the case of claims for loss, damage or non-delivery with a copy to the carrier if the Business's own vehicles have not been used to deliver the Goods):
(a) within five days of delivery for loss, damage, defect or non-compliance with the Contract; or
(b) within 5 days of non-delivery.
8.9 In the event of a valid claim for defect, loss, damage, or non-compliance with the Contract (save in respect of non-delivery, in which case the provisions of condition 8.10 shall apply) the Business may replace or refund the items concerned at its expense but shall not be under any further or other liability in connection with such loss, damage or non-compliance.
8.10 Without prejudice to clauses 15 and 17, in the event of a valid claim for non-delivery the Business undertakes at its option to replace the items concerned at its expense or to refund the Buyer for all payments made.
8.11 If the Buyer shall fail to give notice in accordance with condition 8.8 above the items delivered shall be deemed to be in all respects in accordance with the Contract and without prejudice to earlier acceptance by the Buyer it shall be bound to accept the same accordingly and all claims in respect of non-delivery, loss, damage, defect or non-compliance shall (save as set out in condition 13 below) thereafter be wholly barred.
8.12 If for any reason the Buyer is unable to accept delivery of the Goods at the time when the Goods are due and ready for delivery the Business may at its sole discretion without prejudice to its other rights and for such period as the Business may determine store the Goods at the Buyer's risk and take all reasonable steps to safeguard and insure them at the Buyer's cost, provided that the Buyer shall be immediately informed thereof.
8.13 The Business shall have the right to make delivery by instalments of such quantities and at such intervals as it may decide, and any express provision as to instalments in the Contract shall be in addition to and not in derogation of this right.
8.14 Notwithstanding any other provision of these conditions, the Business reserves the right to cancel a delivery or an order (without further liability for any failure to deliver or otherwise provide the relevant Goods) where it believes (acting reasonably) that making such delivery or fulfilling such order would place it in breach of any law , rule, regulation or government measure to which it is subject including, without limitation, any law, rule, regulation or government measure that relates to export controls (or equivalent) in any relevant territory.
8.15 Without prejudice to clause 8.14, the Buyer shall inform the Business immediately if it becomes aware that making a delivery of Goods to the Buyer will, or is likely to, place the Business in breach of any law, rule, regulation or government measure including, without limitation, any law, rule, regulation or government measure that relates to export controls (or equivalent) in any territory.
9 Availability
9.1 All Goods are subject to availability. While the Business endeavours to procure and check stock availability to meet all orders, if they have insufficient stock to supply or deliver the Goods ordered and paid for by you, the Business will attempt to contact you using the details you have provided to us to ask you how you wish to proceed. The Business may, at its discretion, process any part of the order which is available. Where there is insufficient stock to supply or deliver the Goods ordered, the Business will refund you the price paid for such Goods immediately and in any case within 14 days.
10 Returns
10.1 You have the right to cancel the contract. However, f you receive a defective, damaged or non-compliant item, please contact us through your account within 5 days of delivery (if claiming under clause 8.8) or discovery (if claiming under clause 13.1) with details of the product and the damage, non-compliance or defect.
10.2 Upon receipt of the returned product, the Business will fully examine it and notify the Buyer via e-mail or through their account within a reasonable period of time, whether the Buyer is entitled to a refund/replacement as a result of the defect, damage or non-compliance. Any refund will be provided by the original method of payment used by the Buyer.
11 Passing of title and risk
11.1 Unless otherwise expressly agreed in writing, risk of loss of, or damage to, and ownership (also known as “title”) in the Goods shall pass to the Buyer when the Goods are handed over by the Business to its carrier of transportation to the Buyer. Notwithstanding this, the Business will arrange on the Buyer's behalf for insurance (with the Business as beneficiary) against the Buyer’s risk of loss, or damage to, the Goods up to the point that they are delivered to the Buyer when the Goods are in transit and, upon request, provide the Buyer with proof of insurance.
12 Conditions and warranties
12.1 The Contract shall not constitute a sale by description or sample.
12.2 All images are for illustration purposes only. Contents / accessories shown in images are not included unless stated in product description.
12.3 Any conditions or warranties (whether express or implied by statute or common law or arising from conduct or a previous course of dealing or trade custom or usage or otherwise howsoever) as to the quality of the Goods or their fitness for any particular purpose (even if that purpose is made known expressly or by implication to the Business) or as to the correspondence of the Goods with any description or sample are hereby expressly excluded.
13 Defective Goods
13.1 In substitution for all rights which the Buyer would or might have but for these conditions the Business may offer additional rights to the buyer where product are manufactured by us.
13.2 In the case of Goods not manufactured by the Business, the Business will pass on to the Buyer to the extent that it is able any benefits obtainable under any warranty given by the Business's supplier provided that the Goods have been accepted and paid for.
13.3 In order to exercise its rights under this condition the Buyer shall inform the Business within five days of the earlier of the date when such defect appeared or the date when such defect ought reasonably to have been discoverable and shall at the Business's written request return the defective Goods carriage paid to the address specifically provided for returns, which may or may not be the Business's Premises.
13.4 Nothing in the Contract shall impose any liability upon the Business in respect of any defect in the Goods arising out of the acts, omissions, negligence or default of the Buyer, its servants or agents including in particular (but without prejudice to the generality of the foregoing) any failure by the Buyer to comply with any recommendations of the Business as to storage and handling of the Goods.
13.5 Where the Goods are for delivery by instalments any defect in any instalment shall not be a ground for cancellation of the remainder of the instalments and the Buyer shall be bound to accept delivery thereof.
13.6 Nothing in the Contract shall have the effect of excluding or restricting the liability of the Business for death or personal injury resulting from its wilful act or omission or negligence.
14 Buyer's specification
14.1 Subject to clause 13.6, the Business shall not be liable in any respect for any loss or damage arising out of any inaccuracies in any information or specification supplied by the Buyer.
15 Excluded liability
15.1 The Business shall not be liable to the Buyer for any liability in contract, tort (including, without limitation, negligence and wilful default) or otherwise for any loss of goodwill, business, profits, revenue, anticipated savings or wasted expenditure or any indirect or consequential loss or damage whatsoever arising out of the performance, purported performance or breach of the Contract.
17 Limitation of liability
17.1 Without prejudice to the operation of the provisions of clauses 13.6, and 15.2 the aggregate liability of the Business (whether in contract or tort (including, without limitation, negligence and wilful default) or breach of statutory duty or otherwise howsoever) to the Buyer for any loss or damage of whatsoever nature and howsoever caused shall be limited to:
(a) the amount insured under the business policy; or
(b) for all other loss or damage the price of the Goods in respect of which the liability arises.
18 Representations
18.1 The Contract sets out the entire agreement and understanding between the parties.
18.2 Both parties agree that:
(a) it has not entered into this Contract in reliance upon any representation, warranty or undertaking of any other party that is not expressly set out or referred to in this Contract;
(b) no part shall have any remedy in respect of misrepresentation or untrue statement made by any other party unless and to the extent that a claim lies for breach of warranty under this Contract; and
(c) this clause shall not exclude liability of either party for fraudulent misrepresentation.
19 Force majeure
19.1 The Business shall be entitled to delay or cancel delivery or to reduce the amount of Goods delivered if and to the extent that it is prevented from or hindered in or delayed in manufacturing, obtaining or delivering the Goods by normal route or means of delivery through any circumstances beyond its control including (but not limited to) strikes, lock-outs, accidents, war, fire, reduction in or unavailability of power at manufacturing plant, breakdown of plant or machinery or shortage or unavailability of raw materials from normal sources of supply.
20 Cancellation
N/a
21 Sub-contracting
N/a
22 Severance
22.1 The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (and, by extension, the Contract). The remainder of these and the Contract shall be valid and enforceable.
23 Law and Jurisdiction
23.1 These Terms and Conditions and the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
23.2 Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or to the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.