We amend these Terms from time to time as set out in clause 12. Every time you wish to create and order Products, please check these Terms to ensure you understand the terms which will apply at that time. These Terms were most recently updated on 31st March 2014.
These Terms, and any Contract between us, are only in the English language.
1. Information about us
1.1 We operate the website www.gfsmith.com. We are G.FSmith & Son (London) Limited, a company registered in England and Wales under company number 00490873 and with our registered office at Lockwood Street, Hull HU2 OHL. Our main trading address is at our registered office address which is noted above. Our VAT number is GB167780035.
1.2 To contact us, please see our Contact Us page [insert hyperlink].
2. Our Products
2.1 Our Products are bespoke MakeBook’s however the images of the Products on the site are for illustrative purposes only. Although we have made every effort to display the colours accurately, we cannot guarantee that your computer’s display of the colours accurately reflect the colour of the Products. Your Products may vary slightly from those images.
2.2 Although we have made every effort to be as accurate as possible, all sizes, weights, capacities, dimensions and measurements indicated on the site have a 5% tolerance.
2.3 The packaging of the Products may vary from that shown on images on the site.
2.4 All Products shown on the site are subject to availability.
3. Use of the site
Your use of the site is governed by our Terms of Website Use. Please take the time to read these, as they include important terms which apply to you.
4. How we use your personal information
5. If you are a consumer
This clause 5 only applies if you are a consumer. 5.1 If you are a consumer, you may only purchase Products from the site if you are at least 18 years old.
5.2 As a consumer, you have legal rights in relation to Products that are faulty or not as described. Advice about your legal rights is available from your local Citizens’ Advice Bureau or Trading Standards office. Nothing in these Terms will affect these legal rights.
6. If you are a business customer
This clause 6 only applies if you are a business.
6.1 If you are not a consumer, you confirm that you have authority to bind any business on whose behalf you use the site to purchase Products.
6.2 These Terms and any document expressly referred to in them constitutes the entire agreement between you and us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter.
6.3 You acknowledge that in entering into this Contract you do not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms or any document expressly referred to in them.
6.4 You and we agree that neither of us shall have any claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
7. How the contract is formed between you and us
7.1 For the instructions you need to take to place an order for Products on the site, please see our How To Shop Online page [insert hyperlink]. There are two ways in which an order may be placed for the Products. Please see our How to shop online page for further details. [hyperlink]
7.2 Both our order processes allow you to check and amend any errors before submitting your order to us. It is your responsibility to ensure that you are happy with the Products before they are printed. Once you have clicked the “payment icon” you will be bound to purchase the Products as they have been printed. Please take the time to read and check your order at each page of the order process. Each stage of the order process is described in our How to Shop Online page [hyperlink]
7.3 After you place an order, we will confirm our acceptance to you by sending you an e-mail (Order Acknowledgement). The Contract between us will only be formed when we send you the Order Acknowledgement.
7.4 If we are unable to supply you with the Products, for example because those Products are not in stock or no longer available or because of an error in the price on the site, we will inform you of this by e-mail and we will not process your order. If you have already paid for the Products, we will refund you the full amount as soon as possible.
8.1 We will allow you to use a series of online tools that we will provide via this site. This will allow you to upload photographs, images and text and including words and comments to create a customised MakeBook which are the Products. In order to access these services you must comply with these Terms and you must be able to access the internet.
8.2 You must make sure that you are the owner of any photographs, images, words and comments that you upload onto the site. You may not upload any images or other material where you do not have the right to do so or allow us to use such images or other material in accordance with these Terms. For example, you may not take photos from another website or other publication and do anything with them unless you have obtained the permission from the owner of the relevant right.
9. Use of our service
9.1 You may upload explanatory notes, photographs, images and words and comments to the site yourself. Anything uploaded to the site must be digital images in the appropriate format.
9.2 Anything uploaded by you to the site will (subject to the restrictions in these Terms) be available for viewing by you.
9.3 You will not use the site (or to copy or use any material from the site) for any commercial purpose other than to conduct a commercial transaction with us. This includes allowing access to your account to view your Make Book in return for payment or for any other commercial purpose. Your use of the site must be for your personal use.
9.4 In using the site you agree that you will not upload anything which is defamatory, pornographic, obscene, indecent or offensive, illegal, infringing any copyright, trademark, database or other intellectual property right of any third party, or in any way unlawful.
10. Uploaded content and images
10.1 Although we cannot allow you to upload certain types of content to the site, we cannot control, nor do we monitor the use of the site. It is possible that images or other material may appear on the site which is unlawful or offensive and contravene our restrictions on content set out above. We are not responsible for such images or material but if you become aware of any such images or material on the site please contact us immediately.
10.2 We reserve the right to inform law enforcement authorities if we are made aware that anything unlawful is occurring or has occurred in relation to the site including the uploading of any images in breach of the restrictions on content set out above. We may provide copies of any relevant images or text to law enforcement authorities and in that connection may also give them access to any personal data that is held by us to the extent permissible by law.
10.3 We may without notice and at our sole discretion delete or remove anything that has been uploaded in breach of these Terms.
10.4 We may refuse to provide any further services to you if you breach these Terms.
11.1 You retain all intellectual property rights, including copyright, in those images or words that you have uploaded to the site where you already own such rights. We are the owner (or the licensee) of all intellectual property rights in the site.
11.2 We may delete, remove or refuse to display any material from your account at our sole discretion.
11.3 We may display, modify, print, transmit or distribute any of the images that you upload, in order to provide any of the services and Products offered by us through the site subject to these Terms.
11.4 It is a condition of allowing you to use the site and any services offered through it that you have the right to copy, upload or otherwise deal with those images in relation to the site and to allow us to process and otherwise deal with those images in accordance with these Terms.
12. Our right to vary these terms
12.1 We may revise these Terms from time to time in the following circumstances:
12.1.1 changes in how we accept payment from you;
12.1.2 changes in relevant laws and regulatory requirements.
12.2 Every time you order Products from us, the Terms in force at that time will apply to the Contract between you and us.
12.3 Whenever we revise these Terms in accordance with this clause 12, we will keep you informed and give you notice of this by stating that these Terms have been amended and the relevant date at the top of this page.
13. Your consumer right of return and refund
This clause 13 only applies if you are a consumer.
13.1 If you are a consumer, you have a legal right to cancel a Contract under the Consumer Protection (Distance Selling) Regulations 2000. However, this cancellation right does not apply to this contract between us as in the case of the Products on this site as the Products are bespoke to you and are produced to your specification and clearly personalised.
13.2 If you have returned the Products to us because they are faulty or mis-described, we will refund the price of any defective Products in full, any applicable delivery charges, and any reasonable costs you incur in returning the item to us.
13.3 We refund you on the credit card or debit card used by you to pay.
13.4 If the Products were delivered to you and they are faulty or mis- described:
13.4.1 you must return the Products to us as soon as reasonably practicable;
13.4.2 you have a legal obligation to keep the Products in your possession and to take reasonable care of the Products while they are in your possession.
13.5 As a consumer, you will always have legal rights in relation to Products that are faulty or not as described. These legal rights are not affected by the returns policy in this clause 13 or these Terms. Advice about your legal rights is available from your local Citizens’ Advice Bureau or Trading Standards office.
14.1 Your order will be fulfilled by the estimated delivery date set out in the Order Acknowledgement, unless there is an Event Outside Our Control. If we are unable to meet the estimated delivery date because of an Event Outside Our Control, we will contact you with a revised estimated delivery date.
14.2 Delivery will be completed when we deliver the Products to the address you gave us.
14.3 If no one is available at your address to take delivery, we will leave you information on how to claim the Products.
14.4 The Products will be your responsibility from the completion of delivery.
14.5 You own the Products once we have received payment in full, including all applicable delivery charges.
15. International delivery
15.1 We may be able to deliver to countries outside the United Kingdom (International Delivery Destinations). If you require delivery outside the United Kingdom please contact us in advance of placing your order.
15.2 If you order Products from the site for delivery to one of the International Delivery Destinations, your order may be subject to import duties and taxes which are applied when the delivery reaches that destination. Please note that we have no control over these charges and we cannot predict their amount.
15.3 You will be responsible for payment of any such import duties and taxes. Please contact your local customs office for further information before placing your order.
15.4 You must comply with all applicable laws and regulations of the country for which the Products are destined. We will not be liable or responsible if you break any such law.
16. Price of Products and international delivery charges
16.1 The prices of the Products will be as quoted on the site from time to time. We take all reasonable care to ensure that the prices of Products are correct at the time when the relevant information was entered onto the system. However if we discover an error in the price of the Products you ordered, please see clause 16.5 for what happens in this event.
16.2 Prices for our Products may change from time to time, but changes will not affect any order which we have confirmed with an Order Acknowledgement.
16.3 The price of the Products includes VAT (where applicable) at the applicable current rate chargeable in the UK for the time being. However, if the rate of VAT changes between the date of your order and the date of delivery, we will adjust the VAT you pay, unless you have already paid for the Products in full before the change in VAT takes effect.
16.4 The price of the Products includes delivery charges for delivery within the UK but excludes any international delivery charges. Our international delivery charges are as quoted on the site from time to time. To check relevant international delivery charges, please contact us directly.
17. The site contains a large number of Products.
It is always possible that, despite our reasonable efforts, some of the Products on the site may be incorrectly priced. If we discover an error in the price of the Products you have ordered we will inform you in writing to inform you of this error and we will give you the option of continuing to purchase the Products at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing. Please note that if the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a mispricing, we do not have to provide the Products to you at the incorrect (lower) price.
18. How to pay
18.1 You can only pay for Products using a debit card or credit card. We accept the following cards: [insert hyperlink of cards that are accepted].
Payment for the Products and all applicable delivery charges is in advance. We will charge your debit card or credit card at the time we send you the Order Acknowledgement.
19. Our warranty for the Products
19.1 The Products shall be free from material defects. However, this warranty does not apply in the circumstances described in clause 18.2.
19.2 The warranty in clause 18.1 does not apply to any defect in the Products arising from:
19.2.1 fair wear and tear;
19.2.2 wilful damage, abnormal storage or working conditions, accident, negligence by you or by any third party;
19.2.3 if you fail to operate or use the Products in accordance with the user instructions;
19.2.4 any alteration or repair by you or by a third party who is not one of our authorised repairers; or
19.2.5 any specification provided by you.
19.3 If you are a consumer, this warranty is in addition to your legal rights in relation to Products that are faulty or not as described. Advice about your legal rights is available from your local Citizens’ Advice Bureau or Trading Standards office.
20. Our liability if you are a business
This clause 19 only applies if you are a business customer.
20.1 Nothing in these Terms limit or exclude our liability for:
20.1.1 death or personal injury caused by our negligence;
20.1.2 fraud or fraudulent misrepresentation;
20.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
20.1.4 defective Products under the Consumer Protection Act 1987.
20.2 Subject to clause 19.1, we will under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
20.2.1 any loss of profits, sales, business, or revenue; 20.2.2 loss or corruption of data, information or software; 20.2.3 loss of business opportunity;
20.2.4 loss of anticipated savings;
20.2.5 loss of goodwill; or
20.2.6 any indirect or consequential loss.
20.3 Subject to clause 19.1 and clause 19.2 , our total liability to you 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 Products.
20.4 Except as expressly stated in these Terms, we do not give any representation, warranties or undertakings in relation to the Products. Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, we will not be responsible for ensuring that the Products are suitable for your purposes.
21. Our liability if you are a consumer
This clause 20 only applies if you are a consumer.
21.1 If we fail to comply with these Terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breach of these Terms or our negligence, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if they were an obvious consequence of our breach or if they were contemplated by you and us at the time we entered into the Contract. 21.2 We only supply the Products for domestic and private use. You agree not to use the Products for any commercial, business or re-sale purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
21.3 We do not in any way exclude or limit our liability for:
21.3.1 death or personal injury caused by our negligence;
21.3.2 fraud or fraudulent misrepresentation;
21.3.3 any breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession);
21.3.4 any breach of the terms implied by section 13 to 15 of the Sale of Goods Act 1979 (description, satisfactory quality, fitness for purpose and samples); and defective Products under the Consumer Protection Act 1987.
22. Events outside our control
22.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by an Event Outside Our Control. An Event Outside Our Control is defined below in clause 21.2.
22.2 An Event Outside Our Control means any act or event beyond our reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
22.3 If an Event Outside Our Control takes place that affects the performance of our obligations under a Contract:
22.3.1 we will contact you as soon as reasonably possible to notify you; and
22.3.2 our obligations under a Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. Where the Event Outside Our Control affects our delivery of Products to you, we will arrange a new delivery date with you after the Event Outside Our Control is over.
23. Communications between us
23.1 When we refer, in these Terms, to “in writing”, this will include e-mail. 23.2 If you are a consumer:
23.2.1 To cancel a Contract in accordance with your legal right to do so as set out in clause 13, you must contact us in writing by sending an e-mail to info@ gfsmith.com or by sending a letter to GFSmith, Lockwood Street, Hull, HU2 0HL or contact our Customer Services telephone line. You may wish to keep a copy of your cancellation notification for your own records. If you send us your cancellation notice by e-mail or by post, then your cancellation is effective from the date you sent us the e-mail or posted the letter to us.
23.2.2 If you wish to contact us in writing for any other reason, you can send this to us by e-mail or by pre-paid post to email@example.com at GFSmith, Lockwood Street, Hull, HU2 0HL. You can always contact us using our Customer Services telephone line.
23.3 If we have to contact you or give you notice in writing, we will do so by e-mail or by pre-paid post to the address you provide to us in your order.
23.4 If you are a business:
23.4.1 Any notice or other communication given by you to us, or by us to you, under or in connection with the Contract shall be in writing and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, e-mail, or posted on our website.
23.4.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at our registered office; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if sent by e-mail, one Business Day after transmission; or, if posted on our website, immediately.
23.4.3 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
23.4.4 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
24. Other important terms
24.1 We may transfer our rights and obligations under a Contract to another organisation, but this will not affect your rights or our obligations under these Terms.
24.2 You may only transfer your rights or your obligations under these Terms to another person if we agree in writing.
24.3 This contract is between you and us. No other person shall have any rights to enforce any of its terms.
24.4 Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
24.5 If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
24.6 If you are a consumer, please note that these Terms are governed by English law. This means a Contract for the purchase of Products through the site and any dispute or claim arising out of or in connection with it will be governed by English law. You and we both agree to that the courts of England and Wales will have non-exclusive jurisdiction. However, if you are a resident of Northern Ireland you may also bring proceedings in Northern Ireland, and if you are a resident of Scotland, you may also bring proceedings in Scotland.
24.7 If you are a business, a Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non- contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
24.8 If you are a business, we both irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with a Contract or its subject matter or formation (including non-contractual disputes or claims).