1. Interpretation
1.1 In these Conditions:
"BUYER"means the person who offers to purchase the Goods by completing the order form or by such other means as specified on the Seller's website;
"CONDITIONS" means the standard terms and conditions of sale set out on the Seller's website and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller;
"CONTRACT" means the contract for the purchase and sale of the Goods;
"GOODS" means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions;
"SELLER" means Make a Wish Cards with whom the Buyer has contracted for the purchase and sale of the Goods; and
"WRITING" includes e-mail, facsimile transmission and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
2. Basis of The Sale
2.1 The submission by the Buyer of a completed order form constitutes an offer by the Buyer to purchase the Goods specified therein. A Contract is formed between the Seller and the Buyer when (and not before) the Seller notifies the Buyer by e-mail that the Buyer's order has been accepted. The Seller has no obligation to accept any offer so made.
2.2 The Seller shall sell and the Buyer shall purchase the Goods in accordance with the order of the Buyer as set out in the completed order form which is accepted by the Seller subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions.
2.3 The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer's own risk and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical clerical or other error or omission on the website or in any acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2.6 No drawings, designs, illustrations, descriptions, or any other information contained on the Seller's website or any other sales literature of the Seller shall be deemed to form part of the Contract but are for general information and guidance only.
3. Orders and Specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller in accordance with condition 2.1.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity shall be as set out in the completed order form and the quality and description of and any specification for the Goods shall be those set out on the Seller's website.
3.4 No order which has been accepted by the Seller may be cancelled by the Buyer except as stated on the Sellers website whereby the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4. Price of the Goods
4.1 The price of the Goods shall be the price quoted on the Seller's website, or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller's published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only, or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour or materials), any change in delivery dates quantities or specifications for the Goods which is requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated on the Seller's website, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are exclusive of all charges for packaging, packing, carriage and delivery of the Goods to the Buyer's address.
4.4 Unless otherwise stated on the Seller's website, all prices are exclusive of any applicable Impuesto Valor Añadido (IVA: Spanish VAT) duties, imports and other levies which the Buyer shall be additionally liable to pay to the Seller.
5. Terms of Payment
5.1 The Buyer shall pay the price of the Goods in accordance with the terms set out on the Seller's website and receipts for payment will be issued only upon request.
5.2 If the Buyer fails to make proper payment when due then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries to the Buyer.
6. Delivery
6.1 Unless otherwise agreed in Writing, delivery of the Goods shall be made to the address entered by the Buyer on the order form. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery. Time for delivery shall not be of the essence unless agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 If any Goods are damaged in transit, or a quantity less than that ordered is delivered, the Buyer shall notify the Seller in Writing within three days of receipt of the Goods. Where Goods are accepted from a carrier without being checked, the delivery book of the carrier must be signed "not examined".
6.4 Where the Goods are to be delivered in instalments each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as repudiated.
6.5 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller's reasonable control or the Buyer's fault and the Seller is accordingly liable to the Buyer at the Seller's liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.6 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of the Seller's fault) then without prejudice to any other right or remedy available to the Seller the Seller may:
6.6.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs of storage; or
6.6.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
8. Warranties and Liability
8.1 THE SELLER warrants that the Goods will correspond with their specification as set out on the Seller's website at the time of delivery except that the Seller shall be under no liability in any respect of any defect in the Goods arising from any drawing, design, or specification supplied by the Buyer.
8.2 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.3 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within three days from the date of delivery. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.4 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions the Seller shall be obligated to replace the Goods (or the part in question) free of charge or, at the Seller's sole discretion, replace the Goods or give a credit note in respect thereof, but the Seller shall have no further liability to the Buyer.
8.5 Except in respect of death or personal injury caused by the Seller's negligence, the Seller shall not be liable to the Buyer by reason of any representation or any implied warranty condition or other term or any duty at common law or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer except as expressly provided in these Conditions
8.6 The Seller shall not be liable to the Buyer, or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Seller's obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller's reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the Seller's reasonable control:
8.6.1 act of God, explosion, flood, tempest, fire or accident;
8.6.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.6.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental parliamentary or local authority;
8.6.4 import or export regulations or embargoes;
8.6.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.6.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.6.7 power failure or breakdown in machinery.
9. Indemnity
9.1 If any claim is made against the Buyer that the Goods infringe, or that their use or resale infringes, the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim or paid or agreed to be paid by the Buyer in settlement of the claim provided that:
9.1.1 the Seller is given full control of any proceedings or negotiations in connection with any such claim;
9.1.2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
9.1.3 except pursuant to a final award, the Buyer shall not pay or accept any such claim or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld);
9.1.4 the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
9.1.5 the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and
9.1.6 without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.
10. Insolvency of Buyer
10.1 This clause applies if:
10.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.1.2 an encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases or threatens to cease to carry on business; or
10.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 If this clause applies then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer and, if the Goods have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11. General
11.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business, or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3 The Seller reserves the right to vary these Conditions at any time but, in respect of any ordered Goods, the terms and conditions which apply shall be those which the Buyer accepted when it placed its order.
11.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
11.5 Any dispute arising under or in connection with these Conditions, or the sale of the Goods, shall be referred to arbitration by a single arbitrator by agreement or (in default) nominated on the application of either party by the President for the time being of the Chartered Institute of Arbitrators.
11.6 In respect to any contract entered into between the Buyer and Seller, no other party shall have the right under the Contract (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not effect any right or remedy of a third party which exists or is available apart from that Act.
11.7 The Contract shall be governed by the laws of England and Spain (as appropriate) and the parties to the Contract submit to the non-exclusive jurisdiction of these Courts.
