Terms & Conditions

Terms and Conditions of Sale

The customer's attention is drawn in particular to the provisions of clause 9.

1. Interpretation

1.1 Definitions:

Business Day: a day other than a Saturday, Sunday or public holiday in Scotland, when banks are open for business.

Company: McLaggan Smith Mugs Limited, registered in Scotland with company number SC108315.

Contract: the contract between the Company and the Customer for the sale and purchase of the Products in accordance with these Conditions.

Customer: the person or firm who purchases the Products from the Company.

Delivery Location: has the meaning given in clause 1.

Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control.

Order Acknowledgement: an acknowledgement of the Customer's order for the Products, as set out in the Company's pro forma order form.

Products: the items set out in the Order Acknowledgement.

Website: the Company’s website at www.msmugs.com.

1.2 Interpretation:

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b) A reference to a party includes its personal representatives, successors and permitted assigns.

(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

(e) A reference to writing or written includes email.

2. Placing an Order

2.1 Online (via our Website)

(a) The Customer will be guided through the process of placing an order by a series of simple instructions on the Website. The Customer will have the opportunity to review the order and to correct any errors before placing the order.

(b) After the Customer places an order the Company will provide an Order Acknowledgement via email. The Customer shall be responsible for ensuring that the terms of the order are complete and accurate, and shall notify the Company as soon as possible if any changes are required.

2.2 By email or phone

(a) The Customer can place an order via phone (01389 755 655) or email (sales@msmugs.com).

2.3 If the Company is unable to supply the Products due to: (i) the Products being no longer in stock or available; (ii) an error in pricing; or (iii) issues with payment, the Company shall not process the order and inform the Customer as soon as possible. If the Customer has paid for the Products a refund will be made available.

3. Basis of Contact

3.1 The Order Acknowledgement shall be deemed to be accepted by the Customer upon receipt, at which point the Contract shall come into existence.

3.2 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

3.3 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

3.4 These Conditions shall apply to all Products ordered by the Customer.

4. Products

4.1 Any specifications in respect of the Products such as: (i) applicable sizes for items; and (ii) minimum orders for items, will be notified to the Customer.

4.2 Any descriptions, illustrations or images of the Products contained in the Company's catalogues or Website are produced for the sole purpose of giving an approximate idea of the Products and the Products may vary from those descriptions illustrations or images.

4.3 The Company shall take all reasonable care to ensure that the details, description and price of the Products on the Website are up-to-date, however the Company makes no warranty as to the accuracy of such details, description and price of the Products.

5. Price and Payment

5.1 The price of the Products shall be shown on the Website and shall be set out in the Order Acknowledgement.

5.2 The price of the Products:

(a) includes amounts in respect of value added tax (VAT); and

(b) excludes the costs and charges of packaging, any import or export duties, bank charges, insurance, transport of the Products and any return shipping fees for the Products, which the Customer shall additionally be liable to pay to the Company.

5.3 The Customer shall pay each invoice submitted by the Company:

(a) in the case of new customers, immediately upon receipt of an invoice, in full and in cleared funds to the Company’s bank account; and

(b) in all other cases, within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Company and confirmed in writing to the Customer, in full and in cleared funds to the Company’s bank account.

5.4 For orders completed online via the Website payment shall be made at the point of order via Barclaycard or PayPal.

5.5 For orders which incur any additional import or export duties (i) at delivery or (ii) on the return of the Products to the Company, the Customer shall additionally be liable for these charges, unless otherwise agreed in writing by the Company.

5.6 Time for payment shall be of the essence of the Contract.

5.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

6. Delivery

6.1 The Company shall deliver the Products to the location set out in the Order Acknowledgement or such other location as the parties may agree (Delivery Location) at any time after the Company notifies the Customer that the Products are ready.

6.2 Delivery is completed in the following ways:

(a) for UK sales, where the Company has arranged delivery, on the completion of unloading of the Products at the Delivery Location;

(b) for international sales, where the Company has arranged delivery per an Incoterm (which will be notified to the Customer within the Order Acknowledgement), upon the unloading of the Products at the Delivery Location; or

(c) where the Customer has arranged collection of the Products by any carrier for carriage to the Delivery Location, upon the loading of the Products at the Company’s premises.

6.3 Any dates quoted for delivery are approximate only, however the Company shall endeavor to complete delivery between 3 and 4 weeks. Time of delivery is not of the essence.

6.4 The Company shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Customer's failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.

6.5 If the Company fails to deliver the Products (completely or partially) the Customer shall notify the Company in writing as soon as possible, and no later than 5 Business Days of the date of delivery shown on the Order Acknowledgement. The Company’s liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Products. The Company shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.

6.6 If the Customer fails to accept delivery of the Products within three Business Days of the Company notifying the Customer that the Products are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Company's failure to comply with its obligations under the Contract in respect of the Products:

(a) delivery of the Products shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Company notified the Customer that the Products were ready; and

(b) the Company shall store the Products until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

6.7 If ten Business Days after the day on which the Company notified the Customer that the Products were ready for delivery the Customer has not accepted actual delivery of them, the Company may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Products.

6.8 The Company may deliver the Products by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

7. Quality

7.1 The Company warrants that on delivery the Products shall:

(a) conform in all material respects with their description; and

(b) be free from material defects in design, material and workmanship.

7.2 Subject to clause 3, if:

(a) the Customer gives notice in writing to the Company within 5 Business Days of receipt of the Products that some or all of the Products do not comply with the warranty set out in clause 1;

(b) the Company is given a reasonable opportunity of examining such Products; and

(c) the Customer (if asked to do so by the Company) returns such Products to the Company's place of business at the Customer's cost,

the Company shall, at its option, replace the defective Products, or refund the price of the defective Products in full.

7.3 The Company shall not be liable for the Products' failure to comply with the warranty set out in clause 1 if:

(a) the Customer alters or repairs such Products without the written consent of the Company; or

(b) the defect arises as a result of wilful damage, negligence, or abnormal storage conditions.

7.4 Except as provided in this clause 7, the Company shall have no liability to the Customer in respect of the Products' failure to comply with the warranty set out in clause 1.

7.5 The terms implied by sections 13 to 15 of the Sale of Products Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

7.6 These Conditions shall apply to any replacement Products supplied by the Company.

8. Title and Risk

8.1 The risk in the Products shall pass to the Customer on completion of delivery.

8.2 Title to the Products shall not pass to the Customer until the earlier of:

(a) the Company receives payment in full (in cash or cleared funds) for the Products and any other goods that the Company has supplied to the Customer in respect of which payment has become due; and

(b) the Customer resells the Products, in which case title to the Products shall pass to the Customer at the time specified in clause 4.

8.3 Until title to the Products has passed to the Customer, the Customer shall:

(a) store the Products separately from all other goods held by the Customer so that they remain readily identifiable as the Company's property;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;

(c) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(d) notify the Company immediately if it becomes subject to any of the events listed in clause 1(b) to clause 10.1(d); and

(e) give the Company such information as the Company may reasonably require from time to time relating to (i) the Products; and (ii) the ongoing financial position of the Customer.

8.4 Subject to clause 5, the Customer may resell or use the Products in the ordinary course of its business (but not otherwise) before the Company receives payment for the Products. However, if the Customer resells the Products before that time:

(a) it does so as principal and not as the Company’s agent; and

(b) title to the Products shall pass from the Company to the Customer immediately before the time at which resale by the Customer occurs.

8.5 At any time before title to the Products passes to the Customer, the Company may:

(a) by notice in writing, terminate the Customer's right under clause 4 to resell the Products or use them in the ordinary course of its business; and

(b) require the Customer to deliver up all Products in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.

9. Limitation of Liability

9.1 The restrictions on liability in this clause 9 apply to every liability arising under or in connection with the Contract including liability in contract, delict (including negligence), misrepresentation, restitution or otherwise.

9.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a) death or personal injury caused by negligence;

(b) fraud or fraudulent misrepresentation;

(d) defective products under the Consumer Protection Act 1987.

9.3 Subject to clause 2, the Company's total liability to the Customer shall not exceed the total price of the Products.

9.4 Subject to clause 2, the following types of loss are wholly excluded: (i) loss of profits; (ii) loss of sales or business; (iii) loss of agreements or contracts; (iv) loss of anticipated savings; (v) loss of use or corruption of software, data or information; (vi) loss of or damage to goodwill; and (vii) indirect or consequential loss.

9.5 This clause 9 shall survive termination of the Contract.

10. Termination

10.1 Without limiting its other rights or remedies, the Company may terminate this Contract with immediate effect by giving written notice to the Customer if:

(a) the Customer commits a material breach of any term of the Contract;

(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business [or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction];

(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

(d) the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

10.2 Without limiting its other rights or remedies, the Company may suspend provision of the Products under the Contract or any other contract between the Customer and the Company if the Customer becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(d), or the Company reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

10.3 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

10.4 On termination of the Contract for any reason the Customer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of Products supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt.

10.5 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

10.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

11. Force majeure

Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate the Contract by giving 10 days' written notice to the affected party.

12. General

12.1 Assignation and other dealings

(a) The Company may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

(b) The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Company.

12.3 Variation. The Company may vary the Contract, and in particular these Conditions at any time. The Customer shall be responsible for reviewing any updates to these Conditions.

12.4 Waiver.

(a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

12.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

12.6 Notices.

(a) Any notice given to a party under or in connection with this agreement shall be in writing and shall be:

(i) delivered by hand or by pre-paid first-class post or other next business day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(ii) sent by email to the addresses commonly used by the representatives of the parties.

(b) Any notice shall be deemed to have been received:

(i) if delivered by hand, at the time the notice is left at the proper address;

(ii) if sent by pre-paid first-class post or other next business day delivery service, at 9.00 am on the second Business Day after posting; or

(iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.

(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

12.7 Third party rights. No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

12.8 Governing Law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with Scots law.

12.9 Jurisdiction. Each party irrevocably agrees that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.