Allgemeine Geschäftsbedingungen
- 1. Definitions
- In these Conditions the following definitions apply:
- ‘Contract’ means the agreement between David Harber Ltd and the Customer for the sale and purchase of the Works, incorporating these Standard Terms and Conditions, the Order Confirmation and Personalisation Form;
- ‘Customer’ means the customer identified in the Order Confirmation;
- ‘Deposit’ means 50% of the list price of the ordered Work;
- ‘Order’ means the order for a Work issued by the Customer, including as appropriate the completed Personalisation Form; and
- ‘Work’ means the works to be purchased by the Customer as identified in the Order Confirmation and Personalisation Form.
- 2. Quotations and Orders
- 2.1 Quotations issued by David Harber Ltd are valid for 30 days from the date of issue.
- 2.2 Lead times for Works are typically 14 weeks. David Harber Ltd will provide the Customer with an anticipated date for delivery once the Order has been placed and the Deposit paid and, where relevant, the Personalisation Form and/or Drawing Approval Form has been confirmed and signed by the Customer.
- 2.3 On placement of an Order, the Customer shall pay to David Harber Ltd the Deposit for the ordered Work. The Customer shall provide the information specified in Condition 4 below at the time the Order is placed.
- 2.4 Following receipt by David Harber Ltd of the Order, the parties shall then agree the detailed specifications of the Order.
- 2.5 David Harber Ltd will issue the draft ‘Order Confirmation’ which will set out the detailed specifications agreed by the parties and the relevant price for the supply and installation (where relevant) of the Work (subject to extra charges that may become applicable in accordance with these Standard terms and Conditions). The Customer shall indicate its acceptance of the Order Confirmation by signing or ticking the appropriate box.
- 2.6 If the Customer requires personalisation, it shall complete the Personalisation Form and submit the information to David Harber Ltd as soon as possible after placement of the Order. Should any change be required to the Personalisation Form after the Customer has been notified that production of the Work has commenced (but before completion of the production of the Work), David Harber Ltd will be entitled to make a reasonable charge for making the agreed changes to the Work, which will be subject to a minimum of £850 plus VAT.
- 2.7 Where required, David Harber Ltd shall issue a ‘Drawing Approval Form’ including the technical drawings for the Work for approval by the Customer. Should the Customer request any amendments to the technical drawings after the Drawing Approval Form has been approved by it, the work required to carry out the requested changes will be charged at the standard labour rate as will be notified to the Customer.
- 2.8 If the Customer gives written notice of withdrawal of an Order before signing the Order Confirmation, David Harber Ltd will refund the Deposit less reasonable administrative and preparatory costs and expenses incurred in processing the Order to the date of notice of withdrawal. The Deposit becomes non-refundable once the Customer has signed the Order Confirmation.
- 2.9 If the production process of a Work is delayed as a result of any failure by the Customer to provide information required by David Harber Ltd for the production process within four weeks of a request for such information (including without limitation the provision of the completed Personalisation Form), David Harber Ltd reserves the right to charge the Completion Payment to the Customer.
- 2.10 In the event of a shipment of the Work being received by the Customer in a damaged condition, the delivery agent’s paperwork must be signed and marked to record that the shipment was damaged. Under no circumstances should the delivery crate be discarded. Photographs of the damaged sculpture and crate should be sent to David Harber Ltd as soon as reasonably practicable after delivery and where possible within 24 hours.
- 3. David Harber Ltd responsibilities
- 3.1 David Harber Ltd shall use all reasonable endeavours to provide the Work and any installation services within 14 weeks plus shipping time of receipt of the completed Personalisation Form and/or Drawing Approval Form (where relevant), or earlier if agreed in advance with the Customer, and in accordance with the specifications set out in the Order Confirmation, Personalisation Form and, where appropriate, Drawing Approval Form.
- 3.2 David Harber Ltd shall comply with its obligations under the applicable health and safety legislation. In circumstances where David Harber Ltd issues health and safety data sheets for commissioned Works, the Customer shall be responsible for ensuring that its employees and contractors read and observe the instructions and recommendations in them.
- 3.3 David Harber Ltd shall carry out suitable testing on all control boxes. The final connection on site must be arranged by the Customer and must be undertaken by a qualified electrician who will need to provide the Customer with an electrical installation certificate. Failure to obtain an electrical installation certificate will invalidate the Lifetime Warranty defined at Condition 5.1.
- 3.4 David Harber Ltd shall not be liable for:
- a) any damage to a work that, in its reasonable opinion, has been used other than in accordance with the instructions issued by David Harber Ltd, or otherwise abused in any way;
- b) any damage, injury or loss caused by any personnel other than those provided by David Harber Ltd.
- 3.5 Nothing in this Contract limits the liability of David Harber Ltd for death or personal injury caused by the negligence of David Harber Ltd or is employees; fraud or fraudulent misrepresentation; or any other losses which cannot be excluded or limited by applicable law.
- 3.6 Where a Work is to be delivered outside mainland UK, David Harber Ltd will provide installation instructions.
- 3.7 David Harber Ltd shall not be liable for any delay caused by any act or omission of the Customer.
- 3.8 In the event that any act or omission of the Customer prevents the commencement of production or completion of the Work for a period of 6 months or more from the Order being placed, David Harber Ltd may, without prejudice to any other rights it enjoys in law or under this Contract and on written notice to the Customer, amend the full price of the Work to reflect changes to the cost of manufacture of the Work (including without limitation changes to the cost of raw materials and exchange rates).
- 3.9 In the event that any act or omission of the Customer prevents the commencement of production or completion of the Work for a period of 12 months or more from the Order being placed, David Harber Ltd may, without prejudice to any other rights it enjoys in law or under this Contract and on written notice to the Customer, terminate this Contract and retain any monies paid by the Customer up to the point of termination.
- 4. Customer responsibilities
- 4.1 The Customer shall provide such information relating to the Order and as required in the Personalisation Form, and as reasonably requested by David Harber Ltd from time to time.
- 4.2 Where David Harber Ltd is responsible for installations, the Customer shall prepare the site for installation of the Work in accordance with David Harber Ltd’s specifications. Should the site not be prepared as specified and as a result, David Harber Ltd is required to perform additional work, or the installation is delayed, then David Harber Ltd will be entitled to charge for any additional labour, mileage and materials at the standard applicable rates (as available from David Harber Ltd on request). David Harber Ltd will not be responsible for any work conducted by a third party in preparing the site for installation.
- 4.3 In the event that the site has not been prepared in accordance with David Harber Ltd’s specification, and in David Harber Ltd’s reasonable opinion is unsuitable for installation of the Work as a result, David Harber Ltd may charge for the reasonable costs and expenses incurred in relation to the abortive site visit, including any associated subsistence, travel and hotel costs.
- 4.4 For certain types of Work, the Customer will be required to arrange for additional personnel to assist with the installation. Details of such requirements will be set out in the Order Confirmation.
- 4.5 David Harber Ltd must be made aware prior to the Deposit being paid of any work that is to be installed in a public place so that extra precautions can be taken to ensure the commission is designed and created to ensure that it is appropriate for the site.
- 4.6 If water features are required to run continuously this must be advised at the time the Order is placed and details will be confirmed on the Order Confirmation./li>
- 4.7 The Customer shall, unless otherwise agreed in advance with David Harber Ltd in writing, agree that the work be shipped within three months of being notified that it is ready for installation or despatch, as applicable. In the event the Customer fails to agree to the shipping of the work within such 3 month period (or such alternative period as has been agreed in advance with David Harber Ltd), unless such delay is caused by David Harber Ltd, the Customer shall pay the Final Payment to David Harber Ltd upon receiving notice that it is due as a result of the delay, and David Harber Ltd shall reserve the right to charge for storage of the Work at the standard rate of £100 per week plus VAT.
- 4.8 In the event that David Harber Ltd is unable to deliver the Work for 18 months after David Harber Ltd has given notice that the Work is ready for installation or despatch, as applicable, David Harber Ltd shall be entitled, on giving the Customer at least one month’s written notice and without prejudice to its other rights in law or under this Contract, to resell or otherwise dispose of the Work.
- 4.9 The Customer agrees that the Work will be used in the form in which it is received and, in particular, without addition, adulteration, alteration or contamination of any kind whatsoever. The Customer further agrees not to alter the decoration or visible design of the Work in any way or to remove, obliterate or otherwise deface the David Harber Ltd marks appearing thereon.
- 5. Warranty
- 5.1 David Harber Ltd offers a Lifetime Warranty (“Lifetime” is defined as 25 years) on the Work with the following exceptions in respect of a Work:
- a) Gold leaf has a 10-year warranty;
- b) Powder coated or painted finishes have a 5-year guarantee;
- c) Pumps and filters have a 2-year warranty;
- d) Lights and associated drivers have a 3-year warranty, with any replacement lights to be supplied and delivered free of charge.
- 5.2 Any maintenance, repairs or change of parts falling outside the relevant warranty will be charged at the standard labour rate as set out in the Order Confirmation. Mileage and materials relating to such services will also be charged where appropriate.
- 5.3 Where appropriate, a maintenance schedule will be supplied. Where one is supplied, any damage to or degradation of the Work which in David Harber Ltd’s reasonable opinion results from untimely or poor maintenance of the Work shall not be covered by the warranty.
- 5.4 David Harber Ltd manufactures all Works for appropriate use and will not accept responsibility for any failure of a Work resulting from negligence, vandalism, inappropriate or unreasonable use, incorrect installation or the Work being moved other than by David Harber Ltd employees or appointed representatives.
- 5.5 David Harber Ltd will not be liable for:
- a) any minor variations in colour between the Work and any samples or illustrations; or
- b) natural ageing processes that affect the look and colour of unpainted or non-powder coated metal, including but not limited to natural patinas for bronze or brass.
- 5.6 All of the terms in this Condition 5, and in this Contract as a whole, are without prejudice to the rights the Consumer Rights Act 2015 of any Customer who is a consumer according to the provisions of that Act.
- 6. Payment terms
- 6.1 Prices quoted are exclusive of VAT which will be charged in addition where applicable.
- 6.2 A payment of 50% of the full price is due when the Work has been completed (the ‘Completion Payment’ ).
- 6.3 For deliveries outside mainland UK, the Completion Payment and Final Payment must be paid in full prior to the Work being shipped. The Customer shall be responsible for payment of all costs relating to the crating, shipping and insurance of the Work. The Customer shall further be responsible for the payment of all importation duties, taxes or other levies relating to the importation of the Work.
- 6.4 Any bank charges for international payments must be borne by the Customer.
- 6.5 In the event that a Customer fails to make any payment by the applicable Due Date, David Harber Ltd may, without limiting its other rights, charge interest on such sums at 3% a year above the base rate of the Bank of England from time to time in force, and interest shall accrue on a daily basis and will apply from the due date for payment until actual payment in full, whether before or after judgment.
- 6.6 Payment of all sums due to David Harber Ltd should be made by Bank transfer using the details provided on the Order Confirmation. In exceptional circumstances payment by credit card or debit card may be accepted on request. Payment by American Express or cheque is not accepted.
- 6.7 All Works supplied remain the property of David Harber Ltd until payment has been received in full. The Customer shall grant David Harber Ltd’s employees or agents access to relevant premises where the Works are stored or installed, for the purposes of removing such Works.
- 6.8 Risk in the Works shall pass to the Customer on shipping (for deliveries outside mainland UK), delivery (for mainland UK) or where David Harber Ltd is installing the Work, on installation.
- 7. Intellectual property
- 7.1 Nothing in this Contract operates as a transfer of any intellectual property rights (including without limitation design rights) in the Works or any other intellectual property rights of David Harber Ltd, all of which shall continue to be owned by David Harber Ltd. The Customer is not entitled to reproduce the Work or otherwise commercialise the intellectual property rights in the Work without the prior written consent of David Harber Ltd.
- 7.2 David Harber Ltd shall have the right to use any images of the Work on its website and on in social media, unless the Customer has advised otherwise in writing.
- 8. General
- 8.1 This Contract shall be governed by and construed in accordance with the law of England and Wales, and each of the parties irrevocably submits for all purposes in connection with this Contract to the exclusive jurisdiction of the courts of England and Wales.
- 8.2 No amendment or variation of this Contract shall be effective unless in writing and signed by a duly authorised representative of each of the Parties.
- 8.3 The failure of a party to exercise or enforce any right under this Contract shall not be deemed to be a waiver of that right, nor operate to bar the exercise or enforcement of it at any time or times thereafter.
- 8.4 If any provision of part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Condition shall not affect the validity and enforceability of the rest of this Contract.
