These General Terms and Conditions (‘the General Conditions) apply to all sales made by Gemluce. For the avoidance of doubt, these General Conditions apply to all sales, including:
‘Consumer’ and ‘non-consumer’ sales, though differing provisions are made in relation to some matters; and Sales made electronically (online, email, etc), in person, or by any other means.
Gemluce reminds you (‘the Customer’) of its duty to supply goods that conform to the contract. Most importantly, the goods supplied must: correspond with their description; be of satisfactory quality (including fitness for purpose, appearance, and finish, safety, and durability); and correspond with any sample in terms of quality.
- APPLICATION AND INTERPRETATION
1.1. Subject to clause 1.3, these General Conditions, the Customer’s order (but excluding any Customer terms and conditions) and Gemluce acceptance of the order constitute the entire agreement and understanding of the parties.
1.2. All sales contracts and these General Conditions are governed by and interpreted in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts in relation to disputes.
1.3. For Customers to whom credit is extended (‘Account Customers’) and Customers who market and distribute Gemluce’s goods (‘Distributor Customers’), these General conditions only apply insofar as the applicable credit and/or distributor agreements do not make alternative provision.
- SAMPLES, DESCRIPTIONS AND QUOTATIONS
2.1 Gemluce retains title of all sample goods. Samples should be returned in the same condition they were received, fair wear and tear excepted. The Customer is responsible for loss or damage to samples from when they are received by the Customer to when they are received by Gemluce; unless Gemluce arranges return carriage when risk passes when the samples are collected from the Customer.
2.2. Descriptions, illustrations and particulars of weight, size and performance made or given by Gemluce in relation to goods are by way of general description and approximate only. They do not form part of the sales contract.
2.3. Gemluce reserves the right to change the specification of the goods:
2.3.1. to improve technical or other performance;2.3.2. to comply with British, European or international standards;
2.3.3. where Gemluce’s suppliers change the specifications of the components incorporated into the goods.
2.4. Gemluce reserves the right to change the specification without prior notification or public announcement.
2.5. Any typographical or other accidental error in any product description, illustration, particular, quotation, order acceptance, or other document shall be subject to correction without any liability on the part of the Gemluce.
2.6. Nothing in clauses 2.2 to 2.5 obliges the Customer to accept goods which do not reasonably conform to the sales contract.
2.7. Unless agreed in writing, all quotations issued by Gemluce are valid for a period of twenty one days from the day the quotation was issued.
- ORDERS, PRICES AND PAYMENT
3.1. No order submitted by the Customer shall be deemed accepted by Gemluce unless and until confirmed in writing by Gemluce. Gemluce’s acceptance of the Customer’s order brings into existence a legally binding sales contract.
3.2. The price of goods are those applicable at the date of confirmation. On prior agreement between the Customer and Gemluce, the invoice can be issued in Pounds Sterling (GBP), Euro (EUR) or American Dollars (USD). All invoices are payable in the currency on the invoice with the Customer liable to cover any bank charges relating to the currency exchange.
3.3. Agreed prices are based on the quantities ordered. Gemluce reserves the right to vary the price if the Customer does not take delivery of the quantity ordered or the contract is cancelled in relation to some of the goods under clauses 5 or 6 such as to reduce the quantity ordered.
3.4. Gemluce must receive payment of the whole of the price of the goods ordered before any goods are dispatched or made available for collection.
3.5. Where the goods are dispatched or collected without payment being received or where the payment is subject to chargeback or other recovery, time for payment is of the essence and Gemluce is entitled to bring an action for the price whether or not the title in the goods has passed.
3.6. In the event of late or non-payment, Gemluce has the right to charge interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
- CANCELLATION RIGHTS – Gemluce
4.1.Gemluce has the right to cancel the contract where:
4.1.1. one or more of the goods ordered was listed or quoted at an incorrect price due to a typographical, clerical or other accidental error;
4.1.2.Gemluce has insufficient stock to meet the order and obtaining or manufacturing the goods is not commercially reasonable given the delivery date required by the Customer; or
4.1.3. it is not commercially reasonable to arrange delivery to the Customer.
4.2. If Gemluce cancels the contract, it will notify the Customer in writing and refund all payments as soon as possible but in any event within seven days of the cancellation.
4.3. Gemluce is not obliged to offer or pay any compensation for consequential losses or disappointment suffered as a result of its canceling of the contract.
- CANCELLATION RIGHTS – ‘CONSUMER’ CUSTOMERS
5.1. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/2134) give a Customer who is a Consumer minimum rights in relation to cancellation. Gemluce extends the rights in the Regulations as follows:
5.1.1. the cancellation rights apply to on-premises and off-premises contracts as they apply to distance contracts; and
5.1.2. the cancellation period is extended such that the Customer must notify Gemluce within 7 days of receiving the goods and return unwanted products within 28 days from delivery.
5.2. The Customer is responsible for the costs of returning the goods and the risk of loss or damage to the goods until they are received by Gemluce.
5.3. Upon receipt, all returned goods will be subject to inspection for damage and authenticity by Gemluce. If the goods are deemed to be not in re-sellable condition (unused, in original packaging, undamaged), Gemluce reserves the right to refuse to refund or replace and return the item(s) to the Customer.
5.4. Gemluce will refund all payments, less the shipping costs, as soon as possible after the goods are received and in any event within seven days of their receipt. Gemluce will not impose any additional charge, whether for refund, handling, restocking or otherwise.
5.5. Gemluce may at its discretion accept the cancellation of the contract in relation to used goods; goods made to the Customer’s specification; and returns outside the 28-day period in Clause 5.1.2.
- CANCELLATION RIGHTS – ‘NON-CONSUMER’ CUSTOMERS
6.1. Although the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/2134) do not apply to non-consumers, Gemluce may at its discretion (and subject to clause 6.3) accept the cancellation of the contract in relation to stock items and goods made to the Customer’s specification.
6.2. If Gemluce exercises its discretion to accept cancellation of the contract in relation to some or all of the goods, where applicable, it will pass on to the Customer the shipping costs incurred when attempting to deliver the order.
All returns will be subject to a restocking fee of 25% or £25 whichever is higher to cover handling and re-stocking costs.
- TITLE, RISK, CARRIAGE AND DELIVERY
7.1. Title in the goods passes when payment in full is received for the goods or when the goods are manufactured to the Customer’s specifications, whichever is later.
7.2. Where Gemluce has agreed to arrange carriage:
7.2.1. goods for customers in the UK will be dispatched carriage paid;
7.2.2. goods for customers outside the UK will be subject to a charge for carriage;
7.2.3. Gemluce shall be entitled to determine the manner of carriage of the goods and make partial deliveries;
7.2.4. delivery is made and risk in the goods passes when the goods are received by the Customer or delivered in accordance with the Customer’s instructions.
7.3. Where Gemluce has not agreed to arrange carriage, the goods are supplied on an ex works basis, and delivery is made and risk passes when the goods are collected by the Customer or its carrier.
7.4. Except where a later date is agreed, delivery will be made as soon as possible after payment is received. Delivery dates shall be treated as being approximate and Gemluce E is not liable for any delay in delivery, provided that it uses commercially reasonable efforts to deliver the goods as agreed.
7.5.Gemluce reserves the right to charge for any special packaging, handling or delivery arrangements required by the Customer.
7.6. If the goods delivered are damaged, or incorrect goods are delivered, Gemluce shall have no liability to the Customer unless notified of the problem within seven days of delivery.
7.7. If the Customer notifies Gemluce of a problem in relation to damaged or incorrect goods and the problem is evidenced to the reasonable satisfaction of Gemluce , Gemluce’s only obligation at the Customer’s option will be:
7.7.1. to make good any shortage or non-delivery;
7.7.2. to replace or repair any goods that are damaged or defective; or
7.7.3. to refund to the Customer the amount paid for the relevant goods.
8.1. Goods are supplied for export from the United Kingdom. Unless shipped DDP (Delivered Duty Paid), Gemluce makes no representation and accepts no liability in relation to the export and import of the goods bought by the Customer.
8.2. The Customer is responsible for ensuring the products can be exported and imported in accordance with the Customer’s requirements. Unless otherwise agreed in writing at the time of sale, the Customer is responsible for obtaining and meeting the administrative requirements and financial cost in relation to permits, licences, duties, taxes etc.
9.1. Subject to clauses 9.3 to 9.6, Gemluce warrants that at the date of delivery, the goods will be free from defects in material and workmanship for the relevant warranty period in clause 9.2.
9.2. The relevant warranty periods are:
9.2.1. for all Gemluce products, three years, unless otherwise specified within the product description
9.2.2. for any other brand, warranty is as listed in the product description
9.3. The warranty does not apply to:
9.3.1. any defect resulting from a failure to follow Gemluce ’s instructions or competent practice (including applicable local electrical safety standards and wiring regulations) in relation to storage, assembly, installation, maintenance or use;
9.3.2. any defect resulting from: excessive wear and tear, neglect, carelessness, accidental damage or similar;
9.3.3. any defect resulting from alteration, modification or attempted repair not authorized by Gemluce;
9.3.4. any defect resulting from exposure to abnormal environmental conditions, including excessive heat or humidity, exposure to salt-laden air, pressure washing or mechanical cleaning, improper exposure to cleaning products or other chemicals and solvents, etc.
9.3.5. goods that have damaged or removed serial numbers or identification labeling.
9.4. Customers wishing to make a warranty claim should notify Gemluce within seven days of the discovery of the defect. If Gemluce is notified of a claim by a Customer:
9.4.1. the Customer shall allow Gemluce reasonable opportunity to inspect and test the goods in situ under normal operating conditions;
9.4.2. where Gemluce requests that any goods be removed and returned, the Customer shall be liable for the costs of removing the goods and, subject to clause 9.5.2, the cost of returning of the goods;
9.5. Where Gemluce having inspected the goods in situ or having had them returned, decides at its sole discretion that the warranty claim is valid:
9.5.1. Gemluce will at its sole discretion and without charge: repair the defective goods or provide replacement goods;
9.5.2. refund the Customer the reasonable costs of the return carriage of the goods and bear the costs of carriage to the Customer of the repaired or replacement goods;
9.5.3. Gemluce shall not be liable for the costs of installing repaired or replacement goods;
9.5.4. Gemluce shall not be liable for any other costs, including but not limited to costs caused by the removal or installation; loss of profits; loss of business, reputation or goodwill; and special, indirect or consequential loss or damage;
9.5.5. where the goods are repaired or replaced, the repaired or replaced goods shall as far as reasonably possible match the specification of the original goods;
9.6. No warranty is given as to whether or not the goods infringe any third party intellectual property rights.
- LIMITATION OF LIABILITY AND REMEDIES
10.1. The following sets out Gemluce’s liability to the Customer in respect of or in connection with the supply or any failure to supply goods under these General Conditions, whether in contract or tort, including negligence, and are the Customer’s sole remedies in respect of any act or default on the part of Gemluce.
10.2. Gemluce accepts liability for death or personal injury resulting from: its negligence; for any breach by it of the implied terms of the Sale of Goods Act 1979 or, for Consumers, the Consumer Rights Act 2015; for fraud or for fraudulent misrepresentation; and for any other liability which cannot be excluded by law.
10.3. Gemluce accepts liability for direct physical damage to the tangible property of the Customer to the extent that it is caused by the negligence of Gemluce.
10.4. Gemluce does not accept liability for:
10.4.1. any loss of profits; loss of anticipated savings; loss of business, reputation or goodwill (even where these arise from a breach of these General Conditions); and
10.4.2. special, indirect or consequential loss or expenses, even if such loss or expense is foreseeable by or in the contemplation of Gemluce;
10.4.3. any claim made against the Customer by any other person.
10.5. Except as expressly stated in this Clause all conditions and warranties implied, statutory or otherwise are excluded to the maximum extent permitted by law.
10.6. Except as provided in Clauses 9 and 10.2 and 10.3, Gemluce’s total liability in respect of any one default will not exceed 300% of the total purchase price of all the goods in respect of which Gemluce is in default. If a number of defaults give rise to substantially the same loss or are attributable to the same or similar cause, then they will be regarded as giving rise to only one claim. Gemluce will be given a reasonable opportunity to remedy any default.
11.1. Without prejudice to any other right or remedy, a party not in breach will be entitled to consider the other party in breach and may promptly terminate any contract and/or suspend any further deliveries and bring an action for the price whether or not the title in the goods has passed if:
11.1.1. a party commits a material breach of the contract and fails to remedy the same within 14 days of receiving written notice to remedy from the other party (however, late payment requires no such notice for there to be such a breach); or
11.1.2. either party or its parent or subsidiary companies as defined in Part 38 of the Companies Act 2006 makes any voluntary arrangement with creditors or becomes subject to an administration order, or if an individual or firm, becomes bankrupt or, if a company, goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
11.1.3. a receiver or administrative receiver is appointed over, or an encumbrancer takes possession of any of a party’s property or assets or the property or assets of its parent or subsidiary companies or a party ceases trading or threatens to cease trading or any distress or execution is levied on a party, its goods or assets; or
11.1.4. a party has reasonable cause to believe that any of these events is about to occur to the other party.
- GENERAL MATTERS
12.1. Neither party shall be liable to the other for any breach arising from events beyond the reasonable control of the other party or its sub-contractors or suppliers including but not limited to acts of God, war, riot, fire, strikes, terrorism, lock-outs or other forms of industrial action.
12.2. These General Conditions may not be amended, varied or modified except in writing signed by a duly authorised officer or representative of each of the parties.
12.3. Failure or delay by a party in enforcing or partially enforcing any provision of these General Conditions shall not be construed as a waiver of any of its rights under any contract.
12.4. If any provision of these General Conditions is found to be invalid or unenforceable in whole or in part, the validity of the other provisions and the remainder of the provision in question shall not be affected by that invalidity or unenforceability.
12.5. Any terms and conditions which by their nature extend beyond expiration or termination of these General Conditions shall survive and remain in effect.
12.6. These General Conditions are not intended to be for the benefit of, and shall not be enforceable by any person who is not named at the date which the order is placed, under the Contract (Rights of Third Parties) Act 1999 or otherwise and neither party can declare itself a trustee of the rights under it for the benefit of any third party.
12.7. Any other terms and conditions or provisions proposed by the Customer whether orally or in writing shall be of no effect and the acceptance of the order and supply of the goods by Gemluce shall not constitute acceptance of such terms and conditions or provisions.