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All sales of goods by First
Tunnels, whether made via its website, by telephone, or by any other means, are
subject to the Conditions listed below.
1
Definitions
and Interpretations
1.1
In these Conditions, unless the context otherwise requires,
the following words and expressions shall have the following meanings:
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"Customer"
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the person who
makes an offer to buy the Goods from First Tunnels subject to these
Conditions and whose offer for the Goods is accepted by First Tunnels and
such acceptance is acknowledged to the Customer (the "First Tunnels Acknowledgement");
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"Contract"
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the contract
for the purchase and sale of the Goods;
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"Export
Goods"
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Goods which
are ordered for delivery outside the UK, which must be separately
negotiated and agreed between the parties;
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"Goods"
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the goods ordered
by the Customer from First Tunnels;
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"Order"
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the order
placed by the Customer with First Tunnels for the Goods either on the order
page headed ‘Checkout’, or by completing the order form, or by telephone;
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"First
Tunnels"
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First Tunnels
Limited of Dixon Street, Barrowford, Lancashire BB9 8PL (registered office:
Branwell House, Park Lane, Keighley, West Yorkshire BD21 4QX; Company
Number: 4196731);
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"Writing"
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includes
e-mail.
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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
General
2.1
First Tunnels shall sell and the Customer shall purchase the
Goods in accordance with these Conditions and any extra conditions or terms
stated on the First Tunnels website or in its catalogue.
2.2
All Contracts made by the Company and any additions or
amendments thereto shall be subject to these Conditions which shall supersede
and shall be taken to override any terms or conditions proposed or stipulated
by the Customer.
2.3
First Tunnels reserves the right to alter these Conditions
from time to time and the alterations will apply to any orders received after
that time.
2.4
First Tunnels’ employees or agents are not authorised to
make any representations concerning the Goods unless confirmed by First
Tunnels in Writing. In entering
into the Contract the Customer acknowledges that it does not rely on any such
representations which are not so confirmed.
3
Ordering
3.1
No Order submitted by the Customer shall be deemed to be
accepted by First Tunnels unless and until confirmed by the First Tunnels
Acknowledgement.
3.2
The Customer shall be responsible to First Tunnels for
ensuring the accuracy of the terms of the Order, and for specifying in the Order
any necessary information relating to the Goods to enable First Tunnels to
perform the Contract.
3.3
The quantity and description of the Goods to be provided by
First Tunnels to the Customer under the Contract shall be those set out in
the First Tunnels Acknowledgement.
3.4
Subject to clause 8, no Order which has been accepted by
First Tunnels may be cancelled by the Customer except with the agreement in
Writing of First Tunnels and on terms that the Customer shall indemnify First
Tunnels 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 First Tunnels as a result of cancellation.
4
Price
and Payment
4.1
The price of the Goods shall be the price listed on the
First Tunnels’ website at the date of the First Tunnels Acknowledgement (the
"Price"). Separate prices may apply in relation
to Export Goods. Prices include
VAT but do not include delivery.
4.2
First Tunnels reserves the right, by giving notice in
Writing to the Customer at any time before delivery, to increase the Price of
the Goods to reflect any increase in the cost to First Tunnels which is due
to any factor beyond the control of First Tunnels (such as, without
limitation, any foreign exchange fluctuation, currency regulation, alteration
of duties, significant increase in the costs of labour, materials or other
costs of manufacture), any change in delivery dates or quantities which is
requested by the Customer, or any delay caused by any instructions of the
Customer or failure of the Customer to give First Tunnels adequate
information or instructions.
4.3
Payment can be made by any method specified on the Checkout
page of the website. First
Tunnels will take all reasonable precautions to keep the details of your
order and payment secure, but, unless we are negligent, we cannot be held
liable for any losses caused as a result of unauthorised access to
information provided by you.
4.4
Payment of the Price together with the delivery charges (as
specified on the website but updated from time to time) will be debited from
the Customer's account after the First Tunnels Acknowledgement has been
notified to the Customer but before the Goods are delivered.
4.5
Where First Tunnels invoices the Customer payment of the
invoice is due within 28 days and late payment attracts interest at the rate
of 1.5% above the base lending rate of Yorkshire Bank. After 60 days, customers whose
accounts remain unpaid will have their credit facilities suspended and no
further goods will be supplied.
4.6
Any discount which is offered subject to payment by a
specific date may be withdrawn if payment is not made by that date.
4.7
While First Tunnels tries to ensure that all prices on the
First Tunnels website are accurate, errors may occur. If First Tunnels discovers an error
in the price of Goods you have ordered we will inform you as soon as possible
and give you the option of reconfirming your order at the correct price or
cancelling it.
4.8
If the Customer's card issuer fails to make any payment of
the Price or any delivery charge on behalf of the Customer then, without
prejudice to any other right or remedy available to First Tunnels, First
Tunnels shall be entitled to cancel the contract or suspend any further
deliveries.
5
Indemnity
5.1
If any claim is made against First Tunnels that the
manufacture or sale of the Goods infringes the intellectual property rights
of any other person, the Customer shall, except to the extent that the claim
is due to the default of First Tunnels, indemnify First Tunnels against all
damages, costs or expenses incurred by First Tunnels in or about the defence
or settlement of the claim. To
the extent that First Tunnels is at fault it shall similarly indemnify the
Customer.
6
Delivery
6.1
Delivery charges and estimated timescales are specified on
First Tunnels’ website under ‘Shipping’. First Tunnels makes every effort to deliver goods within
the estimated timescales, however delays are occasionally inevitable.
6.2
Any time or date for the despatch or delivery of Goods shall
be taken as an estimate made by First Tunnels in good faith but shall not be
of the essence of the Contract. First Tunnels shall not be liable for any
loss caused to the Customer in consequence of failure to deliver by the
estimated delivery date/time or such other date/time as may be subsequently
agreed.
6.3
Unless the parties otherwise agree to the contrary in
Writing, delivery of the Goods shall be made by First Tunnels delivering the
Goods to the Customer at such premises as specified by the Customer in its
Order or such other premises that the Customer and First Tunnels have agreed
in Writing.
6.4
First Tunnels will not deliver Goods to premises outside of
the UK. Any request for such
delivery must be specifically negotiated and agreed in Writing.
6.5
If the Customer fails to take delivery of the Goods or fails
to give First Tunnels adequate delivery instructions at the time stated for
delivery (otherwise than by reason of any cause beyond the Customer’s
reasonable control or by reason of First Tunnels’ fault) then, without prejudice
to any other right or remedy available to First Tunnels, First Tunnels may:
6.5.1
store
the Goods until actual delivery and charge the Customer for the reasonable
costs (including insurance) of storage; or
6.5.2
sell
the Goods at the best price readily obtainable and (after deducting all
reasonable storage and selling expenses) account to the Customer for the
excess over the Price under the Contract or charge the Customer for any
shortfall below the Price under the Contract.
7
Data
Protection
7.1
Please refer to our Privacy Policy on our website for more
information. The purpose of that
policy and this clause 7 is to set out how First Tunnels will use personal
information that it may obtain from and about you. By registering as a user of the services provided by First
Tunnels and by using First Tunnels’ website generally you agree to the
following.
7.1.1
When
you register and use this site you will be asked to provide certain
information such as your contact details. First Tunnels will store this data and hold it on computers
or otherwise. First Tunnels will
use this data to fulfil its agreement with you.
7.1.2
First
Tunnels may use the information that you provide or that is obtained by us
for the following purposes.
7.1.2.1
To
register you with the First Tunnels website and to administer the First
Tunnels website services.
7.1.2.2
For
assessment and analysis (e.g. market, customer and product analysis) to
enable First Tunnels to review, develop and improve the services which we
offer. .
7.1.2.3
For
the prevention and detection of fraud.
7.1.2.4
To
administer any prize draws or competitions you enter.
7.1.3
We
may give information about you, under conditions of confidentiality, to the
following, who may use it for the same purposes as set out above:
7.1.3.1
to
other companies in our group;
7.1.3.2
to
employees and agents of First Tunnels or our group to administer or improve
any accounts, products and services provided to you by First Tunnels or the
group now or in the future;
7.1.3.3
to
other organisations for the administration of prize draws or competitions you
enter, should you enter any.
7.1.4
We
may also disclose your information:
7.1.4.1
to
anyone to whom we transfer or may transfer our rights and duties under our
agreement with you;
7.1.4.2
if
we have a duty to do so or if the law allows us to do so.
7.1.5
In
order that we can monitor and improve our website, we may gather certain
information about you when you use it, including details of your domain name
and IP address, operating system, browser, version and the web site that you
visited prior to our site.
7.1.6
New
technologies are emerging on the Internet that help us to deliver customised
visitor experiences. In
particular, there is a technology called "cookies" which may be
used by us to provide you with customised information from our web site. A
cookie is an element of data that a website can send to your browser, which
may then store it on your system.
Cookies allow us to understand who has seen which pages and
advertisements, to determine how frequently particular pages are visited and
to determine the most popular areas of the First Tunnels website. Cookies
also allow First Tunnels to make our website more user friendly by, for
example, allowing us to save your password so that you do not have to
re-enter it every time you visit our website. We use cookies so that we can give you a better experience
when you return to our website. Most web browsers automatically accept
cookies. You do not have to accept cookies, and you should read the
information that came with your browser software to see how you can set up
your browser to notify you when you receive a cookie, this will give you the
opportunity to decide whether to accept it.
7.1.7
First
Tunnels may supplement the information that you provide to us with
information that we receive from third parties.
7.1.8
First
Tunnels endeavours to take all reasonable steps to protect your personal
information. However, we cannot guarantee the security of any data you
disclose on-line. You accept the inherent security risks of providing
information and dealing on-line over the Internet and will not hold us
responsible for any breach of security unless this is due to our negligence
or wilful default.
7.1.9
You
have the right to see personal data (as defined in the Data Protection Act)
that First Tunnels keeps about you, upon receipt of a written request and
payment of a fee. If you are concerned that any of the information we hold on
you is incorrect please contact us.
7.1.10
Please
be aware that our site may link to other websites which may be accessed
through the First Tunnels site. We are not responsible for the data policies
or procedures or the content of these linked websites.
7.1.11
In
the course of undertaking the activities specified in this privacy policy
First Tunnels may transfer data outside the European Economic Area to
countries which do not have data protection laws or to countries where your
privacy and other fundamental rights may not be protected as extensively as
in the United Kingdom.
7.2
How can I get my name removed for the First Tunnels website
mailing list?
7.2.1
If
you want to be removed from our mailing list, or have us delete your details
from our database, please send an email to sales@firsttunnels.co.uk detailing
your request. Please note that it may take up to 28 days to action your
request.
7.3
Contact Us
7.3.1
If
you have any comments or queries in connection with our privacy policy or to
resolve any disputes, or your need to change any of the registered details we
hold about you, please contact us using the contact details available on the
website.
8
Risk
8.1
Risk of damage to or loss of the Goods shall pass to the
Customer at the time of delivery or, if the Customer wrongfully fails to take
delivery of the Goods, the time when First Tunnels has tendered delivery of
the Goods.
8.2
The ownership of the Goods shall pass to the Customer at the
time of the:
8.2.1
passing
of risk in the Goods to the Customer pursuant to sub-clause 8.1; or
8.2.2
receipt
by First Tunnels of payment in full of the Price and cost of delivery;
whichever is
the later.
8.3
Until such time as the property in the Goods passes to the
Customer (and provided the Goods are still in existence and have not been
resold), First Tunnels shall be entitled at any time to require the Customer
to deliver up the Goods to First Tunnels and, if the Customer fails to do so
forthwith, to enter upon any premises of the Customer or any third party
where the Goods are stored and repossess the Goods.
8.4
The Customer shall not be entitled to pledge or in any way
charge by way of security for any indebtedness any of the Goods which remain
the property of First Tunnels, but if the Customer does so all moneys owing
by the Customer to First Tunnels shall (without prejudice to any other right
or remedy of First Tunnels) forthwith become due and payable.
9
Insolvency
of Customer
9.1
This clause applies if at any time before the ownership of
the Goods passes to the Customer pursuant to sub-clause 8.2 one or more of
the following events occurs (the "Cancellation
Events"):
9.1.1
the
Customer makes any voluntary arrangement with its creditors or (being an
individual or firm) becomes bankrupt or (being a company) becomes subject to
an administration order or goes into liquidation (otherwise than for the
purposes of amalgamation or reconstruction);
9.1.2
an
encumbrancer takes possession, or a receiver is appointed, of any of the
property or assets of the Customer;
9.1.3
the
Customer ceases, or threatens to cease, to carry on business;
9.1.4
First
Tunnels reasonably apprehends that any of the events mentioned above is about
to occur in relation to the Customer and notifies the Customer accordingly.
9.2
If this clause applies then, without prejudice to any other
right or remedy available to First Tunnels, First Tunnels shall be entitled
to cancel the Contract or suspend any deliveries under the Contract without
any liability to the Customer save that First Tunnels shall refund to the
Customer all and any payments made to it in respect of the Price prior to the
Cancellation Event. If the Goods
have been delivered but not paid for at the date of the Cancellation Event
the Price due in respect of the delivered Goods shall become immediately due
and payable notwithstanding any previous agreement or arrangements to the
contrary.
10
Returns
10.1
First Tunnels offers guarantees in relation to the products
it manufactures, which vary in length depending on the product in question,
and such guarantees are stated in the catalogue and/or on the website. During the guarantee period, First
Tunnels warrants that the relevant Goods will be free from material defects in
quality and workmanship, and that they will correspond to their
specification. The guarantees do
not affect your statutory rights.
10.2
First Tunnels offers no warranties or guarantees in respect
of products it sells which are manufactured by third parties, but wherever
possible will pass the benefit of any warranty or guarantee it receives from
the manufacturer to the Customer.
10.3
For the avoidance of doubt, First Tunnels shall not be
liable for any defect in the Goods arising from fair wear and tear, wilful
damage, accident, negligence, use otherwise than as recommended by First
Tunnels, failure to follow the manufacturer’s instructions, or any alteration
or repair carried out without the approval of First Tunnels.
10.4
Any claim by you that the Goods are defective or fail to
correspond with their description shall be notified to First Tunnels Limited
in Writing at the following address within seven days of delivery or (where
the defect was not apparent on reasonable inspection) within seven days of
discovery of the defect: Dixon Street, Barrowford, Lancashire BB9 8LP. If you do not notify us of your claim
within the seven days and in Writing as stated above, you shall not be
entitled to reject the Goods and we shall have no liability for the defect or
failure.
10.5
Upon receipt of your claim First Tunnels shall arrange for
inspection of the rejected Goods.
First Tunnels shall collect any faulty or incorrect Goods, and shall
either, at its option, refund the full Price and delivery charges, or replace
the Goods. If it is possible to
repair or alter the Goods so that they do conform to their specification and
warranted quality standards within a reasonable time period, then First
Tunnels may choose to so repair or alter them. First Tunnels shall thereafter have no further liability
towards the Customer.
11
Your
right to cancel
11.1
If you are a consumer (as defined in The Consumer Protection
(Distance Selling) Regulations 2000), you have the right to cancel the
Contract at any time up to the end of seven working days after you receive
the Goods. A working day is any
day other than weekends and bank or other public holidays.
11.2
To exercise your right of cancellation, you must give
written notice to First Tunnels Limited at the following address, giving
details of the Goods ordered and (where appropriate) their delivery: Dixon
Street, Barrowford, Lancashire BB9 8LP.
11.3
If you exercise your right of cancellation after the Goods
have been delivered to you, you will be responsible for returning the Goods
to First Tunnels at your own cost. The Goods must be returned to the address
shown in Clause 11.2, be in their original packaging, be in their original
condition, and you must enclose the order number with the package. You must
ensure that the Goods are not damaged in the meantime or in transit.
11.4
Once you have notified us that you are cancelling the
Contract, First Tunnels will refund or recredit you within 30 days for any
sum that has been paid by you or debited from your credit card for the Goods.
11.5
If you do not return the Goods as required, First Tunnels
may charge you a sum not exceeding the direct costs of recovering the Goods.
11.6
This Clause 11 shall not apply to Orders for Goods to be
manufactured to the Customer’s specifications where such Goods cannot easily
be sold to other customers.
12
Exclusion
of liability
12.1
Except in respect of
death or personal injury caused by First Tunnel’s negligence, or liability
for defective products under the Consumer Protection Act 1987, First Tunnels
shall not be liable to the Customer by reason of any representation (unless
fraudulent), or any implied warranty, condition or other term, or any duty at
common law, or under an express term, for loss of profit or for any indirect,
special or consequential loss or damage, costs, expenses or other claims for
compensation whatsoever (whether caused by the negligence of the Company, its
employees or agents or otherwise) which arise out of or in connection with
the supply of the Goods (including any delay in supplying or any failure to
supply in accordance with the Contract or at all) or the use or resale of the
Goods by the Customer, and the entire liability of First Tunnels under or in
connection with the Contract shall not exceed the price of the Goods, except
as expressly provided in these Conditions. This clause shall not affect your statutory rights as a
consumer.
13
Export
Goods
13.1
In the case of orders for Export Goods the Customer shall be
responsible for complying with any legislation or regulations governing the
importation of the Goods into the country of destination and for the payment
of any duties on them, unless otherwise agreed in Writing.
14
Force
Majeure
14.1
First Tunnels shall not be liable to the Customer or be
deemed to be in breach of the Contract by reason of any delay in performing,
or any failure to perform, any of First Tunnels’ obligations in relation to
the Goods, if the delay or failure was due to any cause beyond First Tunnels’
reasonable control.
15
General
15.1
The Contract shall be governed by the laws of England and
Wales and any dispute between us will be resolved exclusively in the courts
of England and Wales. English is
the only language offered for the conclusion of the contract.
15.2
We do not guarantee that this website will be compatible
with your PC, and we accept no liability for any corruption or loss of data held
on your PC, or any liability for any other loss or damage of any kind caused
to your PC resulting from use of this website.
15.3
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 email address as may at the relevant time have been
notified pursuant to this provision to the party giving the notice.
15.4
No waiver by First Tunnels of any breach of the Contract by
the Customer shall be considered as a waiver of any subsequent breach of the
same or any other provision.
15.5
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.
15.6
The Contract constitutes the entire agreement and
understanding of the parties and supersedes all prior oral or written
agreements, understandings or arrangements. No change may be made to the Contract except in Writing
signed by duly authorised representatives of both parties.
15.7
The fact that these Conditions are displayed electronically
or transmitted via the Internet shall not affect their validity or
enforceability.
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