The customer's attention is drawn in particular to the provisions of clause 12.
1.1 In these terms and conditions (Terms), the following definitions apply:
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Terms.
Customer: the person or firm who purchases the Goods from the Supplier.
Goods: the goods (or any part of them) set out in the Order, including frames, Spectacle prescription lenses, contact lenses, sunglasses, accessories and associated items.
Order: the Customer's order for the Goods, as set out in the Customer's purchase order form (Purchase Order Form).
Services: the services supplied by the Supplier as set out in the customer’s purchase order form including but not limited to vision tests and the provision of spectacles and contact lenses.
Specification: any specification for the Goods, including the Customer’s prescription, fitting and any other individually provided aspect of the Goods and/or Services.
Supplier: West Malling Opticians, registered address 32 High Street, West Malling, Kent ME19 6QR.
2. BASIS OF CONTRACT
2.1 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 trade, custom, practice or course of dealing.
2.2 By placing an Order with the Supplier, the Customer acknowledges that they have read and agreed to this Contract.
2.3 The Order constitutes an offer by the Customer to purchase the Goods and/or Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.4 The Order shall only be deemed to be accepted when the Supplier takes payment, at which point the Contract shall come into existence.
2.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that he has not relied on any representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.6 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.7 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 14 business days from its date of issue.
3.1 The Goods are displayed in the Supplier's premises and may be modified by any applicable Specification.
3.2 The Supplier reserves the right to amend the Goods or Specification if required by any applicable statutory or regulatory requirements.
4.1 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.
4.2 The Customer shall collect the Goods from the Supplier's premises within 28 business days of the Supplier notifying the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the Customer’s collection of the Goods.
4.4 The Supplier shall not be liable for any delay or failure to deliver the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions.
4.5 If 28 business days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting administrative and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.6 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately.
5.1 The Supplier warrants that on Delivery, and for a period from the date of delivery (Warranty Period), the Goods shall have the benefit of a manufacturer warranty, the length of which shall be determined by the manufacturer. During the Warranty Period, the Goods are warranted to:
(a) conform with the Specification, and;
(b) be free from material defects in design, material and workmanship.
5.2 If the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(a) the Supplier is given a reasonable opportunity of examining such Goods; and
(b) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer’s cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods within the terms of the manufacturer’s warranty.
5.3 The Supplier shall not be liable for Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) a period of 24 months has passed since Delivery;
(b) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
(c) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, use and maintenance of the Goods;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6.1 The Services are supplied on two bases which differ in the way set out in these Terms:
(a) Full in-store service which includes the full range of services, guarantees and support as set out in these terms (Full Service); and
(b) Price matching services whereby the Customer may ask the Supplier to match the price of an online retailer of spectacles on a “like for like” basis which expressly excludes a number of the services, guarantees and ongoing support available to Full Service Customers as set out in more detail at 9 below (Price Match).
6.2 The Supplier shall supply the Services in accordance with the Specification in all material respects.
6.3 The Supplier has the right to make changes to or suspend the Services in order to comply with any applicable law or regulation or at its own discretion and it shall notify the Customer accordingly. This does not affect the Customer’s obligation to pay for any invoices already sent or the Membership Fee. ??
7. EYECARE SCHEME/CONTACT LENS SCHEME
7.1 The Membership Fee relates to the provision of Goods and/or Services as follows:
(a) The minimum term for Membership shall be 12 months,
(b) The Membership Fee shall be paid by direct debit from the Customer’s nominated bank account, such mandate to be completed prior to the provision of any Goods and/or Services under the Membership,
(c) Membership shall provide for such discounts and promotions to the Supplier’s Goods and Services as the Supplier in its sole discretion shall decide from time to time, such details shall be provided to the Customer prior to the Customer’s application for Membership.
7.2 The Customer may notify the Supplier that he wishes to terminate Membership at the end of the 12 month Membership period by giving notice at least one month before the expiry of the 12 month Membership. Failure to notify the Supplier that the Customer wishes to terminate Membership at least one month prior to expiry of the Membership will result in a rolling monthly contract which requires one month’s notice to cancel.
7.3 On notifying the Supplier that the Customer wishes to terminate the Membership, the Supplier shall provide the Customer with details of any sums outstanding for lenses/services provided but not paid for, including the cost of any lenses the Supplier has ordered but have not been supplied to the Customer. The Customer shall make payment to the Supplier in respect of these outstanding sums within 30 days of receiving notification of the outstanding sums due.
7.4 Early termination of the Membership will result in the Customer being liable to repay to the Supplier the costs involved in the initial contact lens fitting/aftercare and any discounts received on glasses or sunglasses.
7.5 For the avoidance of doubt, the Customer will be liable for any failure to collect any Goods or attend appointments which form part of the Membership.
8. INTEREST FREE PAYMENTS
8.1 The Supplier may, at its sole discretion, offer the Customer to spread the cost of Goods over a period of nine months, interest free (the “Interest-free Payments”).
8.2 Once an order for Goods has been placed with the Supplier, and the Interest-free Payments have been agreed and authorised by the Supplier, the Customer may give notice that they no longer wish to be supplied with the Goods. This notice must be given in writing and received within 30 days of the Interest-free Payment agreement being entered into.
8.3 Failure to give notice in accordance with clause 8.2 will result in the Customer being liable for the further payments due until proper notice is received by the Supplier.
8.4 If the Customer gives notice in accordance with clause 8.2, the Customer shall be liable for payment for any lenses or other materials ordered by the Supplier in order to produce the Goods. Should payment for such not be made on request, the Supplier reserves its rights to enforce payment by any reasonable means necessary.
9. PRICE AND PAYMENT
9.1 The price of the Goods shall be the price displayed at the Supplier’s Premises or set out in the Order.
9.2 The price of the Goods and/or Services shall include VAT at the prevailing rates such as are applicable to the Supplier’s business.
9.3 The Customer must pay for the Goods either:
(a) in advance by payment made at the Supplier’s premises,
(b) By way of Interest free Payments in accordance with clause 8; or
(c) by way of the Membership Fee in accordance with clause 7.1.
9.4 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above National Westminster Bank Plc’s base rate from time to time.
9.5 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
9.6 In relation to Price Match Services, if any information provided by the Customer is incorrect, the Supplier shall not be held liable for any resulting dissatisfaction. Should the Customer require measurements to be taken in an attempt to rectify any issues, this will incur a fee of £49 in addition to the costs of replacement Goods on the Full Service basis.
10. PRICE MATCHING
10.1 To take advantage of a Price Match, the Customer shall:
(a) Produce written evidence that is no more than 30 days old of an online retailer’s costs for the spectacles required by the Customer;
(b) Not be offered advice on Lens Material (index), curves or asphericity to match the Spectacle Prescription that is being requested to go into a chosen frame;
(c) Be supplied with unbranded, economy lenses to fulfil an order for a single vision, bifocal or varifocal orders;
(d) Acknowledge that they shall not receive any lens glazing calculations and consultancy regarding their choice of lenses that have been specified for their chosen frame
(e) Shall not receive any initial fitting service to include checking of Pupillary Distances or the Optical Heights at which the lens should be cut into a frame and the Customer agrees to provide the correct information required to fulfil the Order.
10.2 The Supplier may at its sole discretion agree to supply its Services on the Price Match basis.
10.3 The Customer acknowledges that the quality of the comparable unbranded Goods must also be matched, which may lead to the quality of the Goods being lesser than those offered on the Full Service within the practice.
10.4 All online price matched products queries can only be made via an email to [email protected] and the Customer acknowledges that the Price Match Services exclude all in-store and telephone consultancy.
10.5 Following receipt of the Goods, should an adjustment be required, the Customer is required to have this carried out in store, and each visit shall incur a £29 adjustment fee.
10.6 The Supplier cannot guarantee that any adjustment shall be carried out in one visit, and the Customer is aware that the adjustment fee shall be charged on each subsequent visit.
11. CANCELLATION AND REFUNDS
11.1 The purchase of Goods is exempt from the cancellation rights under the Consumer Rights Act 2015 as the Goods are bespoke products. The Customer therefore waives its rights to make claims of this nature and is aware that there is subsequently no the cooling off period which would have otherwise been available. For the avoidance of doubt, this means that the Customer will not be able to cancel an Order in relation to made-to-measure Goods once the Order is accepted. For the avoidance of doubt, made-to-measure Goods including but limited to any Lindberg, Tom Davies made to order and Tom Davies Bespoke frames, and Essilor spectacle lenses.
11.2 Where the Costumer has taken Price Match Services, the Customer shall not be entitled to a refund in regard to any Goods that are ill-fitting around the nose, ears or temple, if the Goods have been ordered without the Supplier providing professional fitting advice on the fitting, size, colour or material of the frames prior to the Order being placed.
11.3 The Supplier may in its sole discretion be able to offer an exchange of frames to the same value if notified of a request within 24 hours of the Order being accepted but this will not include any refund towards lenses. The following is the maximum level of refund upon cancellation which the Supplier may apply following the Order being made:
(a) 75% refund within 24 hours,
(b) 50% within 48 hours,
(c) 25% within 72 hours.
Any refund will be paid by cheque only within 4-6 weeks.
11.4 The Supplier may cancel an Order before non-made-to-measure Goods are delivered or before the start date for the Services due to Force Majeure event or unavailability of stock or key personnel or materials.
11.5 Any appointment for Services may be cancelled at any time prior to 24 hours before the appointment at no cost. A failure to cancel an appointment less than 24 hours or failure to attend an appointment may result in the Supplier applying an administrative charge.
11.6 All returns under frame warranty must be sent to the Supplier. The Supplier reserves the right to charge postage charges in order to send the Goods to the manufacturer, together with any relevant manufacturer costs incurred on returning the Goods to the Supplier. Should the Supplier be required to send the Goods to the Customer, the Customer acknowledges that further costs may be incurred.
12.1 Re-glazing refers to the practice of supplying lenses to pre-owned frames. The Supplier will accommodate the Customer on such a request as far as is practicably possible given the condition of the frames, subject to 10.2 below.
12.2 The Supplier will not be liable for any faults including breakages in relation to the pre-owned frames given that all types of frames deteriorate with age and will have been subject to the Customer’s own usage for an indeterminate period of time. The warranty set out at clause 5 above is limited to the lenses supplied in re-glazed frames.
13. LIMITATION OF LIABILITY
13.1 The Supplier shall not be liable in any circumstances for provision of goods supplied by a third party if the Customer has taken any part of the Specification for completion by such a third party.
13.2 The Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract.
13.3 The Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
13.4 The Supplier shall not be liable where the Customer has failed to notify the Supplier of a medical condition that is later found to affect the Goods to the extent that the Specification requires alteration or replacement.
14.1 The Supplier aims to respond and resolve complaints within 10 working days with a maximum period of 6 months in which to resolve the complaint with the Customer’s agreement.
14.2 The Supplier will supply the Customer with the complaints procedure within the time frame at 12.1 and this will set out the process in full.
15. DATA PROTECTION
In this clause, the following definitions apply:
“GDPR” means the General Data Protection Regulation ((EU) 2016/679).
(a) to supply the Services to the Customer; and
(b) if the Customer agreed to this, to give the Customer information about similar Services that we provide, but the Customer may stop receiving this at any time by contacting the Supplier.
15.2 The Supplier will only give the Customer’s personal information to third parties where the law either requires or allows the Supplier to do so.
15.3 Both the Customer and the Supplier agree to comply with all applicable requirements of the GDPR. This clause is in addition to, and does not relieve, remove or replace, a party's obligations under the GDPR.
15.4 Without prejudice to the generality of clause 14.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of the Supplier’s obligations under this Agreement:
a. process that Personal Data only on the Customer’s written instructions unless the Supplier is required by the laws of any member state of the European Union or by the laws of the European Union applicable to the Customer to process Personal Data (Applicable Data Processing Laws);
b. ensure that the Supplier has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by us);
c. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
d. only transfer Personal Data outside of the European Economic where the following conditions are fulfilled:
i. The Supplier has provided appropriate safeguards in relation to the transfer;
ii. the data subject has enforceable rights and effective legal remedies; and
iii. The Supplier is in compliance with their obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred.
e. regularly review our processes and systems to ensure that the Supplier meets the conditions that the Supplier has set themselves in this clause.
15.5 At the Customer’s written direction, the Supplier will delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Data Processing Laws to store the Personal Data or where the Supplier, for legitimate business purposes, considers that they need to keep the Personal Data for a set period. The Supplier regularly reviews how long they keep Personal Data for the purposes of the Customer’s re-ordering or raising queries and the current length of time is six years.
16. FORCE MAJEURE
The Supplier shall not be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable including the default of suppliers or subcontractors.
17.1 Any notice given under this agreement shall be in writing and shall be delivered by hand, transmitted by email, or sent by pre-paid first class post or recorded delivery post to the address of the party as referred to in the order.
17.2 If any provision or part of any provision of this agreement (or part of any provision) is found by any court or other body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
17.3 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy.
17.4 Each person that has rights under this agreement is acting on his own behalf.
17.5 A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this agreement.
16.6 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England.