Terms of Business
UK Shopping Mall Limited Terms and Conditions of Sale
These Conditions apply to the sale of all products by UK Shopping Mall Limited trading as Whittingtons through its website or by telephone. By placing an order, the Customer agrees to be bound by them.
1. DEFINITIONS AND INTERPRETATION
1.1 The following definitions apply to these Conditions:
|Business:||means a business, trade or profession (including any person or organisation holding itself out as a business);|
|Conditions:||means these Terms and Conditions as amended from time to time;|
|Consumer:||means a Customer purchasing the Products other than for the purpose of a Business;|
|Contract:||means the contract between UKSM and the Customer for the sale of the Products;|
|Contract Documents:||means the documents comprising the Contract, as specified in Clause 2.3;|
|Customer:||means the person or organisation purchasing the Products from UKSM;|
|Delivery Location:||means the address or addresses for delivery of the Products as confirmed by the Customer;|
|Documentation:||means any descriptions, instructions, manuals, literature, technical details or other related materials supplied by UKSM to the Customer in connection with the Products;|
|Fulfilment Partner:||means a third party supplier of UKSM that delivers the Products to Customers on UKSM’s behalf;|
|Merchant:||means a Customer purchasing the Products pursuant to a drop shipping arrangement with UKSM;|
|Merchant’s Customer:||means the customer of the Merchant who orders the Products;|
|Non-Cancellable Products:||means Products for which the Customer does not have the legal right to cancel an Order, once placed, being: perishable Products such as flowers or certain food products, Products made to order or personalised, and such other Products as UKSM may, at its discretion, designate as Non-Cancellable Products from time to time;|
|Order:||means the Customer’s order for the Products;|
|Pre-Order:||means the ability for Customers to place Orders for Products on the Site to purchase when the Products are available for sale;|
|Price:||means the price of the Products;|
|Products:||means the products, related accessories and spare parts and other physical items to be supplied by UKSM to the Customer in accordance with the Contract;|
|UKSM:||means UK Shopping Mall Limited, a company incorporated under the laws of England and Wales with company number 00327925, whose registered office is at 6 Forest Road, Loughborough, Leicestershire, LE11 3NP; and|
|VAT:||means value added tax under the Value Added Tax Act 1994 or any other similar sale or fiscal tax applying to the sale of the Products.|
1.2 In these Conditions, unless the context does not so permit:
- clause headings are included for convenience only and shall have no effect on the interpretation of these Conditions.
- a reference to a ‘party’ means either UKSM or the Customer and includes that party’s personal representatives, successors and permitted assigns.
- a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
- a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established.
- a reference to any gender includes each other gender.
- words denoting the singular include the plural and vice versa.
- a reference to ‘writing’ includes email and the expression “written” shall be construed accordingly.
- a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
- a reference to a statute or statutory provision includes all subordinate legislation made from time to time under that statute or statutory provision.
2. BASIS OF CONTRACT
2.1 These Conditions apply to and form part of the Contract. They supersede any previously issued terms and conditions.
2.2 These Conditions apply to and govern the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate by any means, or which are implied by law, trade custom, practice or course of dealing.
2.3 If there is any inconsistency between any of the Contract Documents, then they shall prevail in the following descending order of priority:
- any document not mentioned in Clause 2.3(b) to 2.3(d) which the parties intend to be legally binding, including any correspondence between the parties setting out further specifications, minor adjustments or clarifications of the provisions of the other Contract Documents;
- the Order;
- the Order acknowledgment and
- these Conditions.
2.4 No variation of any Contract Document shall be binding unless expressly agreed in writing by each of the Customer and UKSM or their authorised signatories.
2.5 Each Order by the Customer to UKSM shall be an offer to purchase the Products in accordance with the Contract.
2.6 Each Order shall form the subject of a separate Contract.
2.7 When placing the Order the Customer must provide the following information:-
- the full legal name and invoice address of the Customer;
- the specific Products being ordered and the respective quantities of each; and
- the Delivery Location.
2.8 Any descriptive matter, advertising or promotional material issued by UKSM is provided for the sole purpose of giving an approximate indication of the appearance, dimensions, nature, physical properties, functionality or performance of the Products. Any such descriptive matter, advertising or material shall not form part of the Contract
2.9 UKSM does not give the Customer any licence or right to use any images and descriptions of the Products published or supplied by UKSM. If the Customer uses any such images or descriptions, it is the Customer’s responsibility to ensure that they are the most up-to-date in use by UKSM. UKSM does not accept any liability for any loss suffered by the Customer as a consequence of the Customer using images and descriptions of the Products to which UKSM owns the copyright. UKSM may, at its sole discretion, require the Customer at any time to withdraw use of any specific images and descriptions of the Products.
3. PRICES AND PAYMENT
3.1 The Price will be indicated on the Site and, unless otherwise expressly stated otherwise, is inclusive of VAT.
3.2 It is always possible that, despite UKSM’s best efforts, some of the Products may be incorrectly priced. UKSM will normally check Prices before accepting the Order. Where the correct Price at the Order date is less than the advertised price, UKSM will charge the correct Price. If however the correct Price at the Order date is higher than the advertised price, UKSM shall be under no obligation to accept the Order and will contact the Customer for further instructions.
3.3 The Price does not include delivery charges, which will be charged separately. Unless UKSM expressly notifies the Customer otherwise, the delivery charges are as stated on the Site and these may be subject to change from time to time.
3.4 No Order is deemed placed by the Customer until payment of the Price, together with VAT and any applicable delivery charges has been received by UKSM in full and cleared funds. Payment must be made by the Customer in the manner specified on the Site or (if the Order is placed by phone) by bank transfer.
4. AVAILABILITY OF PRODUCTS
4.1 All Products are advertised for sale subject to availability. In the event of unavailability of the Products after the placing of an Order, the Customer shall be informed by UKSM as soon as possible and in which case UKSM may offer the Customer similar alternative Products which are available that the Customer may, at its sole discretion, Order or alternatively UKSM shall provide a refund to the Customer of the Price of the unavailable Products as soon as possible.
5. PRE-ORDER OF PRODUCTS
5.1 Products which are currently out of stock but available for Pre-Order will be marked accordingly on the Site. The Site shall also indicate, with regard to such Products, the estimated date on which the Product will be back in stock. UKSM will endeavour to update Customers where practicable via the Site if such estimated date changes at any time.
5.2 Where a date for a Product being back in stock is indicated on the Site, such date is only an estimate and UKSM does not give any guarantee, promise or representation that the Product will be available by the date specified.
5.3 The Customer has the right to cancel an Order for any Product indicated as being available for Pre-Order and receive a full refund of the Price, together with VAT and any applicable delivery charges, if the Product in question is not available for delivery on the date most recently specified.
6.1 Delivery of the Products shall be deemed to have taken place when UKSM have delivered the Products to the Delivery Location or the unloading of the Products at the Delivery Location. If the Order is being delivered through a signed for service, which expression, includes UK and international parcel couriers as well as pallet transport couriers, a signature from the Customer (or an individual authorised to sign on behalf of the Customer) will be required at the time of delivery.
6.2 Without prejudice to Clause 6.3, UKSM shall use reasonable endeavours to meet any delivery date requested by the Customer, but any such date shall be an estimate only and time shall not be of the essence.
6.3 If the delivery of the Products is delayed by an event outside UKSM’s reasonable control, UKSM will use reasonable endeavours to minimise the effect of the delay. If the Customer has paid an additional charge for express or weekend delivery and the Products are not delivered within the timescales which the Customer has requested, the Customer shall be entitled to a refund from UKSM of the difference between the standard delivery charge for the Products affected and the said additional charge. The refunding of any such additional charge shall be the sole and exclusive remedy of the Customer in connection with any delay in delivery of the Products, provided that, if UKSM has not delivered the Products before the expiry of 30 days from the date on which the Contract came into effect in accordance with Clause 2.7, the Customer may cancel the Contract by giving notice of cancellation to UKSM and receive a refund for any Products paid for but not received.
6.4 If the Customer fails for any reason to accept delivery of non-palletised Products, the Customer will be contacted by UKSM’s nominated courier who may make further attempts in order successfully to deliver the Products in accordance with their standard delivery procedures, failing which the Products will be returned by the courier to UKSM. For palletised Products, UKSM’s nominated courier will only make one attempt to deliver the Products, failing which the Products will then be returned to UKSM. If the Customer requests UKSM to make a further attempt to deliver the Products following the courier’s unsuccessful attempts, the Customer will be required to pay an additional delivery charge to UKSM prior to such further attempt at delivery being made. If the Customer fails to accept delivery of the Products following the courier’s attempts at delivery UKSM may cancel the Contract with immediate effect by giving notice of cancellation to the Customer. In the event of such cancellation the Customer shall be liable for any costs, losses or expenses of any kind incurred by UKSM as the result of the Customer’s failure to accept delivery, including without limitation the cost of storage of the Products and any financial losses incurred by UKSM in the resale of the Products.
6.5 UKSM may deliver the Products in instalments. Any delay or defect in an instalment shall not entitle the Customer to cancel any other instalment.
7. RISK AND OWNERSHIP
7.1 The risk of loss of or damage to the Products shall pass from UKSM to the Customer on delivery.
7.2 Title to the Products shall pass from UKSM to the Customer upon the receipt by UKSM of payment in full in cleared funds for the Products or when the Contract is formed in accordance with Clause 2.7, whichever is the later.
8. ACCEPTANCE AND DEFECTS
8.1 If the Customer is a Consumer, the provisions of Clause 9 will apply. In the event of any discrepancy or inconsistency between this Clause 8 and Clause 9 the provisions of Clause 9 shall prevail.
8.2 The Customer shall be deemed to have accepted the Products upon the expiry of five days from the date of delivery if the Customer has not, within the said period of five days, notified UKSM of any defect or damage. After acceptance the Customer shall not be entitled to reject Products which are not in accordance with the Contract.
8.3 Subject to the following provisions of this Clause 8, UKSM shall, at its option, either repair or replace any Product or, if applicable, a part or component of any Product which is damaged upon delivery or which suffers any material defect or otherwise fails in any material respect to conform to the Contract.
8.4 The obligations of UKSM under Clause 8.3 are subject to the following conditions:-
- the Customer must notify UKSM in writing of the damage, defect or failure promptly upon the same being discovered and in any event, where the damage, defect or failure ought reasonably to have been apparent to the Customer from a visual inspection of the Product, within five days from delivery;
- the Customer must return the defective Products at UKSM’s reasonable expense within such time period as UKSM shall specify; and
- UKSM shall, at its own expense, deliver repaired or replacement Products or, as the case may be, parts or components, to the Customer at the original Delivery Location.
8.5 As an alternative to its obligations under Clause 8.3, UKSM may, at its exclusive and unqualified discretion, refund the Price to the Customer.
8.6 In the event that UKSM exercises its right to refund the Price to the Customer pursuant to Clause 8.5, UKSM may require possession of the Products from the Customer, in which event the Customer will be required to make the Products available for collection.
8.7 Without limiting the foregoing provisions of this Clause 8, UKSM shall have no liability for any damage, defect or failure affecting the Products to the extent that:-
- the defect, damage or failure arises by reason of wear and tear, wilful damage, negligence or could be expected to arise in the normal course of use of the Products;
- the defect, damage or failure is caused by the failure of the Customer, its employees, officers, workers, agents or representatives to comply with any instructions or recommendations issued from time to time by UKSM or the manufacturer in relation to the use, storage, operation, adjustment, maintenance or repair of the Products, whether contained in the Documentation or elsewhere; or
- the Products are used after the Customer has notified UKSM of the defect, damage or failure or ought reasonably to have done so.
9. ADDITIONAL PROVISIONS APPLICABLE TO SALES TO CONSUMERS
9.1 The provisions of this Clause 9 apply only if the Customer is a Consumer and in no other circumstances.
9.2 With the exception of Non-Cancellable Products, the Customer may cancel the Contract without a reason by giving UKSM written notice of cancellation at any time before the expiry of 14 days from the date of delivery of the Products. If the Customer exercises this right to cancel the Contract:-
- the Customer shall at their own expense, return the cancelled Products to UKSM without undue delay and in any event no later than 14 days after the day on which the Customer cancels the Contract; and
- UKSM will, within 14 days of receiving the returned Products back from the Customer, refund the Price and any delivery charges plus VAT, but may deduct a sum to reflect any reduction in the value of the Products as a result of handling of the Products by the Customer beyond what is necessary in order to establish their nature, characteristics and functioning.
9.3 UKSM has a legal duty to supply Products that are in conformity with the Contract. If the Products are not of satisfactory quality, or fit for their purpose or do not match the description provided, the Customer may be entitled to the following statutory remedies:-
- The Customer has the legal right to a refund within 30 days of receiving the Product.
- If the Customer finds a fault within the first six months from receiving the Product, UKSM shall, at its option, either repair or replace any Product. If the Products cannot be repaired or replaced, or if the cost of repair is disproportionate to other remedies that may be available, then the Customer will be entitled to a full refund in most cases.
9.4 If the Customer identifies a fault in the Products after a period of six months following delivery, it is the responsibility of the Customer to prove that the Products were faulty at the time the Products were delivered.
9.5 For any questions or complaints about the Products, please contact UKSM through the Site contact form or by alternatively by sending an email to the email address specified in Clause 15.
10. HANDMADE PRODUCTS
10.1 Due to their nature, UKSM cannot guarantee that handmade Products will be identical in appearance or will not contain imperfections that occur naturally during the production process. As a consequence, the Customer shall only be entitled to reject such Products on the basis that they are not of satisfactory quality or fit for their purpose or do not match the description provided.
11. DROP SHIPPING
11.1 This clause will only apply to purchases of the Products made by Merchants.
11.2 The contract for the sale and supply of the Products to the Merchant’s Customer is a contract between the Merchant and the relevant Merchant’s Customer (Merchant Customer Contract). Accordingly UKSM shall not acquire any duties or liabilities under the Merchant Customer Contract.
11.3 The Merchant shall indemnify and keep UKSM indemnified from any against all costs, claims, demands or expenses incurred by UKSM arising from the performance or non-performance of a Merchant Customer Contract.
11.4 Upon notification of an Order received from the Merchant in connection with a Merchant Customer Contract, UKSM shall use its reasonable endeavours to prepare and deliver the Products to the Merchant’s Customer acting as the agent of the Merchant in accordance with the details provided by the Merchant in the Order. Time of delivery is not of the essence. UKSM shall use its reasonable endeavours to meet delivery dates but such dates are estimates only and UKSM shall, if it has complied with its obligation to use reasonable endeavours, not be liable for any delay in delivery.
11.5 Without limiting the generality of Clause 11.4 UKSM will not be liable for any delay in or failure of delivery of the Products to the Merchant’s Customer caused by:
- the failure of the Merchant’s Customer to take delivery (including UKSM not being satisfied that there is a person properly authorised at the Delivery Location to take delivery); or
- UKSM not being provided with adequate instructions for delivery.
11.6 In the event of any notification being received by the Merchant from the Merchant’s Customer that the Products do not conform to the Contract the Merchant shall:-
- inform UKSM of such notification in writing within two days of receipt from the Merchant’s Customer;
- provide UKSM with sufficient information as to the nature and extent of the alleged non-conformity; and
- arrange, if UKSM so requests, for the Products to be returned by the Merchant’s Customer to UKSM at the Merchant’s expense or for UKSM otherwise to be given a reasonable opportunity of verifying that the Products do not comply with the Contract.
11.7 UKSM shall have no liability for any damage, defect or failure affecting the Products to the extent that:-
- the defect, damage or failure arises by reason of wear and tear, wilful damage, negligence, abnormal working conditions or could be expected to arise in the normal course of use of the Products;
- the defect, damage or failure is caused by the failure of the Merchant?s Customer, its employees, officers, workers, agents or representatives to comply with any instructions or recommendations issued from time to time by UKSM or the manufacturer in relation to the use, storage, operation, adjustment, maintenance or repair of the Products, whether contained in the Documentation or elsewhere; or
- the Products are used after the Merchant’s Customer had notified the Merchant of the defect, damage or failure or ought reasonably to have done so.
12. DIRECT DELIVERY
12.1 This Clause will only apply to purchases of Products which UKSM has instructed a Fulfilment Partner to deliver.
12.2 UKSM will notify the Customer prior to the placing of the Order that the delivery of the Product will be carried out by a Fulfilment Partner.
12.3 The timescales for delivery of the Products made through a Fulfilment Partner may vary. UKSM will notify the Customer of the approximate date for delivery of the Product and use reasonable endeavours to ensure that the Fulfilment Partner meets such delivery dates but such dates are estimates only and UKSM shall not be liable for any delay in delivery. The Fulfilment Partner shall be responsible for contacting the Customer with updates on delivery.
12.4 In the event of any damage or defect to, or failure of, any Products delivered by a Fulfilment Partner Clauses 8 and 9 shall apply. However, in that event UKSM will be required to liaise with the Fulfilment Partner in order to arrange for the collection or replacement of the Products or other applicable remedy, which may adversely affect the timescales for the remediation of the damage or defect.
13. LIMITATION OF LIABILITY
13.1 Nothing in these Conditions shall limit or exclude the liability of UKSM for:
- death or personal injury caused by the negligence of UKSM;
- fraud or fraudulent misrepresentation;
- breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
- any other matter in respect of which it would be unlawful for UKSM to exclude or limit its liability.
13.2 Subject to Clause 13.1:
- UKSM shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of revenue, loss if business or business opportunity or diminution of goodwill, or for any indirect or consequential loss arising under or in connection with any Contract between us, regardless of how the same arose or of whether UKSM had been advised of the possibility of such loss or diminution occurring; and
- the total liability of UKSM to the Customer for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the total sums paid by the Customer for the Products under the Contract.
14. FORCE MAJEURE
UKSM shall not be in breach of the Contract nor liable for any delay in performing or a failure to perform any of its obligations under the Contract to the extent that such delay or failure result from events, circumstances or causes beyond its reasonable control (in each case a Force Majeure Event). In such circumstances, UKSM shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for a continuous period of four weeks, either party may terminate the Contract with immediate effect by giving written notice to the other party.
15. CONTACTING UKSM
The Customer may contact UKSM by either of the following methods:-
- by e-mail at [email protected]; or
- by post to UK Shopping Mall Ltd, Rowena Park, Loughborough Road, Rothley, LE7 7NL, marked for the attention of Customer Services; or
- by telephone to 0116 230 4295.
16. MISCELLANEOUS AND GENERAL
16.1 UKSM may transfer its rights and obligations under the Contract to another organisation. UKSM will notify the Customer in writing of any such transfer.
16.2 The Contract is between UKSM and the Customer. No other person shall have any rights to enforce any of its terms.
16.3 Each of the paragraphs of these Conditions operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
16.4 If UKSM does not insist immediately that the Customer perform any of its obligations or functions under the Contract or if it delays in taking steps against the Customer in respect of any breach of contract, this does not constitute a waiver by UKSM of it rights, and will not prevent UKSM from enforcing the Contract or taking steps to obtain a right or remedy from the Customer at a later date.
16.5 The Contract Documents, together with any other documents referred to in any of them, constitute the entire agreement between UKSM and the Customer, and supersede any previous agreements, arrangements, representations, statements or warranties given or made by either party, with regard to its subject matter. Each party acknowledges that, by entering into the Contract, it has not relied on any representation, statements or warranty by or on behalf of the other party which has not been incorporated into the Contract by way of express provision.
16.6 The Contract is governed by English law and UKSM and the Customer submit to the non-exclusive jurisdiction of the English courts.