In these terms and conditions:
1.1 "The Company" means KA Shopper and any other marketing or
trading names in use in connection with it.
1.2 "The Customer" means any person, firm, company or other
legal entity which places an order, or buys any Products from the
Company and includes the employees, servants, agents, principals
(whether disclosed or undisclosed) or sub-contractors of any such
person, firm, company or other legal entity.
1.3 "Customer Nominated Product" means a Product that is not
sourced by the Company but which at the request of the Customer the
Company has agreed to purchase from the supplier thereof and supply
to the Customer.
1.4 "Equipment" means any machine or equipment.
1.5 "Item" means any other item that is being offered for
sale via the website.
1.6 "Non-Item" means any goods which are not Items or
1.7 "Contract" means a contract between the Company and the
Customer for the sale and purchase of the Products.
1.8 "Products" means any Item and/or Equipment and/or
Non-Item agreed in the Contract to be supplied by the Company to the
1.9 "Statutory Interest" means statutory interest as defined
in the Late Payment of Commercial Debts (Interest) Act 1998 as
amended & supplemented by the Late Payment of Commercial Debts
1.10 "Terms and Conditions" means these terms and conditions of
1.11 "Late Payment Compensation Fee" is detailed in Condition 7.5.
2. APPLICABILITY OF TERMS AND CONDITIONS
These Terms and Conditions shall be incorporated into the
Contract and shall apply in place of and prevail over any terms and
conditions contained or referred to in any communication from the
Customer or implied by trade, custom or practice or course of
dealing. Other purported terms and conditions which the Customer
seeks to impose or incorporate are expressly rejected by the
3. ORDERS AND CONTRACTS
3.1 By placing an order with the Company either via the
Company’s website or by any other means, the
Customer is offering to purchase the Products on the basis of these
Terms and Conditions. The Contract shall be formed when the Company
acknowledges acceptance of the Customer’s order or delivers the
Products to the Customer whichever occurs earlier.
3.2 The Customer is responsible for ensuring that the terms of any
order are complete and accurate.
3.3 No pricing made available to the Customer in any way shall
constitute an offer and the Company may amend its prices at any
time. Prices are quoted inclusive of UK VAT where applicable.
3.4 The Contract is subject to availability of stock and the Company
reserves the right to vary or alter the specification of Products
without notice unless otherwise agreed in writing with the Customer.
3.5 The Contract constitutes the entire agreement between the
parties and the Customer acknowledges that it has not relied on any
statement, promise or representation made or given by, or on behalf
of, the Company which is not set out in the Contract.
3.6 Any listings on the website are produced for the sole purpose of giving an approximate
idea of the Products. They shall not form part of the Contract or
have any contractual force.
4. TITLE & RISK
4.1 Subject to clause 4.2, the risk of loss or damage to the
Products shall pass to the Customer upon completion of the delivery
to the Customer’s address, in accordance with Condition 6.3
4.2 The Company shall not be responsible for any loss or damage to
the Products sustained once they have been received by the Customer, if
such loss or damage arises as a consequence of the condition of the
Customer’s premises or the act, default or omission of the Customer
or its representatives.
4.3 Title in the Products shall not pass to the Customer until the
Company has received in full (in cash or cleared funds) all sums due
to it in respect of the Products and all other sums which are or
which become due to the Company from the Customer on any account.
4.4 Until title passes to the Customer, the Customer shall hold the
Products on a fiduciary basis as the Company’s bailee; store the
Products separately from all other products in such a way that they
are clearly identifiable as the property of the Company; maintain
the Products in a satisfactory condition, and keep them insured on
the Company’s behalf for their full price against all risks, and
notify the Company immediately if it becomes subject to any of the
events listed in Condition 9.2, but the Customer may resell or use
the Products in the ordinary course of its business.
4.5 If before title in the Products passes to the Customer the
Customer becomes subject to any of the events list in Condition 9.2,
or the Company reasonably believes that any such event is about to
happen and notifies the Customer accordingly, then, provided that
the Products have not been resold, or irrevocably incorporated into
another product, and without limiting any other right or remedy the
Company may have, the Company may at any time require the Customer
to deliver up the Products 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.
5. PAYMENT TERMS
5.1 Where credit is granted, unless otherwise agreed in writing,
all sums payable in respect of Items and Non-Items must be paid
without deductions within fourteen days from the end of the calendar month
in which the invoice was raised. Otherwise, all sums must be paid
immediately, prior to any delivery taking place.
5.2 Failure to pay by the due date shall entitle the Company to
suspend delivery of all unexecuted or future orders. The time for
payment of the price of the Products shall be of the essence.
5.3 The Company reserves the right at any time in its absolute
discretion to demand immediate payment of any account whether due or
not and to take legal action to recover the debt and costs.
5.4 If payment is not made in accordance with this Condition, the
Company reserves the right to charge Statutory Interest on the
overdue balances for the period from the date on which payment
became due until the date on which payment is made including any
period after the date of any judgement or decree against the
Customer. In addition each overdue invoice will attract a late
payment compensation fee of Ł40.
5.5 In the event of any cheques, standing orders or direct debits
due from a Customer to the Company being dishonoured, a charge of
Ł45 (or such other sum as the Company may from time to time advise
the Customer) will be made on the Customer’s account to cover bank
and administrative costs.
5.6 The Company reserves the right in its absolute discretion to
refuse to grant credit.
5.7 The Company may, at any time, without limiting any other rights
or remedies it may have, set off any amount owing to it by the
Customer against any amount payable by the Company to the Customer.
6.1 Deliveries of Products to the Customer shall be in
accordance with the Company’s delivery schedule. The Company shall
not be liable for any loss or damage whatsoever arising as a result
of a delay or failure to deliver Products by a particular date or
arising as a result of any cause beyond the Company’s control,
including any force majeure event or the Customer’s failure to
provide adequate delivery instructions. Time for delivery shall not
be of the essence unless otherwise agreed by the Company in writing.
6.2 Delivery of Products shall be made by recognised postal
or courier services that are generally available to the public. Any
failure by the Customer to receive such delivered Items or Non-Items
is something that the Company shall not and cannot be held liable
for, although all reasonable attempts shall be made by the Company
to resolve any delivery problems.
6.3 Delivery of the Products shall be completed upon receipt
by the Customer of the Products at the Delivery Location.
6.4 If the Customer fails to take delivery or fails to give the
Company adequate delivery instructions at the time stated for
delivery then without prejudice to any other right or remedy
available to the Company, the Company may do one or more of the
6.4.1 charge the Customer the cost of carriage of the refused
delivery both to and from the premises of
the Customer in addition
to the Company’s administration charges involved;
6.4.2 charge the Customer the full cost price of the Products and a
sum in respect of its loss of profit
provided that the Company shall
use its reasonable endeavours to mitigate such loss;
6.4.3 where the delivery includes Equipment, store the Equipment
until actual delivery and charge the
Customer for the reasonable
cost (including insurance) of storage;
6.4.4 sell the Equipment at the best price readily obtainable and
charge the Customer for any shortfall
below the price under the
6.5 The Company may deliver the Products by instalments, which shall
be invoiced separately. Any delay in delivery shall not entitle the
Customer to cancel any other instalment.
7. ACCEPTANCE AND CLAIMS PROCEDURE
7.1 The Customer must check that the quantity and specifications
of Products delivered correspond with the Contract.
7.2 Claims in respect of short deliveries or damage to Products
reasonably visible on inspection must be made to the Company within
24 hours of the time of the delivery which gives rise to the claim.
The Customer must retain damaged Products for return and inspection. Credit will only be granted by the Company if the
provisions of this Condition are complied with.
8. CANCELLATION OF CONTRACT
Where such provision exists, a Contract may not be cancelled by the Customer without the
written consent of the Company. The Company reserves the right upon
consent being given to levy a cancellation charge of not less than
20% of the Products which are the subject of a Contract to cover
the Company’s losses arising from the cancellation. Non-stock
Products ordered on behalf of the Customer cannot be returned,
unless the manufacturer agrees to accept them. Where this is not the
case the Customer shall purchase all such non-stock Products from
the Company within fourteen days.
9. INSOLVENCY OF CUSTOMER
In the event that:
9.1 the Customer makes any voluntary arrangement with its creditors,
proposes to enter into a company voluntary arrangement, enters into
administration, is unable to pay its debts as they fall due, makes
application to a Court to suspend enforcement action against it,
goes into liquidation (in the event that the Customer is a company)
or becomes insolvent, enters into a trust deed or voluntary
arrangement for the benefit of its creditors (in the event that the
Customer is an individual or firm), or if the equivalent occurs
under any jurisdiction; or
9.2 an encumbrancer takes possession of, or a receiver or
administrative receiver is appointed over, any of the property or
assets of the Customer; or
9.3 the Customer suspends any payments hereunder or ceases, or
threatens to cease, to carry on business; or
9.4 the Company reasonably considers that any of the events
mentioned above is about to occur in relation to the Customer and
notifies the Customer accordingly;
then without prejudice to any other rights or remedies available to
the Company, the Company shall be entitled forthwith to cancel the
Contract or suspend any further deliveries under the Contract
without any liability to the Customer and if the Products have been
delivered but not paid for, the price shall become immediately
payable notwithstanding any previous agreement to the contrary.
10.1 The Company warrants that all Item Products (with the
exception of Customer Nominated Products in respect of which the
Company’s complete responsibility is set out in Condition 13) shall
comply with the Item Safety Act 1990 and all relevant UK legislation
from time to time in force. The Company warrants that all Non- Item
Products (with the exception of Customer Nominated Products in
respect of which the Company’s complete responsibility is set out in
Condition 13) shall comply with all relevant UK legislation from
time to time in force.
10.2 The Company gives no warranties in respect of the Equipment.
The Company will to the extent that it is able at the sole cost and
expense of the Customer assign or make available to the Customer the
benefit of any warranties or guarantees relating to the Equipment
obtained from the manufacturer thereof.
11. LIMITATION OF THE COMPANY’S LIABILITY
11.1 The Company limits its liability to the maximum extent
permitted by law as follows:
11.1.1 in respect of Item Products, and
where applicable, the Company’s liability shall be
limited to Item
Products consumed up to and including the "Best
before" or "Use by" date;
11.1.2 the Company’s liability shall be limited at its option to
replacing the whole or any part of any
Products found to be damaged
or otherwise defective or refunding or crediting the purchase price
or a pro
rata portion of the purchase price of the Products of which
the defective Products form part; and
11.1.3 the Company’s liability in respect of death, personal injury
or fraud caused by the Company’s
negligence shall not be limited.
11.2 The Company shall have no liability for any loss or damage
suffered by the Customer or any other person:
11.2.1 as a consequence of any defect in any Product caused by
abnormal conditions of storage,
treatment or handling or any
negligence or wrongful act on the part of the Customer or its
11.2.2 for claims for damage reasonably apparent on inspection at
the time of delivery or for short
delivery unless the provisions of
Condition 7 (Acceptance and Claims Procedure) have been complied
11.2.3 for any claim arising on an invoice issued more than
before the date upon which such
claim is received by the Company;
11.2.4 for any loss of profit, loss of sale, loss of goodwill, loss
of reputation; loss of customers and any
other similar indirect or
consequential losses caused by the Company’s negligence or other
on the Company’s part or that of its employees or
agents or otherwise;
11.2.5 for any failure by the Company to perform any of its
obligations in these Terms and Conditions
caused by circumstances
beyond its reasonable control.
12. INTELLECTUAL PROPERTY
Copyright and all other intellectual property rights in the
Products shall remain at all times the property of the Company. The
Customer shall acquire no rights in the Products except as expressly
provided for in these Terms and Conditions.
You may not reproduce, copy, duplicate, transmit, publish, display,
distribute or sell any material from the Company websites. You may
not use the Company websites or their content for any commercial
purpose; including the collection and use of any listings,
descriptions, prices, make any derivative or commercially
exploitative use of this website or its content, download or copy
account information, use any data mining, robots or similar data
gathering and extraction tool without the explicit written consent
of the company. Any unauthorised use terminates any permission’s
13. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or
reduce the volume of Products ordered by the Customer or to cancel
the Contract without liability to the Customer if it is prevented
from or delayed in the carrying out of its obligations under the
Contract due to circumstances beyond its reasonable control
including, without limitation, any failure or delay on the part of
the manufacturer of any of the Products to supply the Products to
the Company, any strike, lock-out or other industrial action, fire,
explosion, flood, closure of motorways or other roads leaving no
alternative route, unusually severe weather conditions or unusually
severe traffic congestion which could not reasonably have been
anticipated leaving no alternative route, loss of power or
telecommunications systems or computer failure or breakdown.
14.1 The Customer undertakes that it shall not at any time
disclose any confidential information concerning the business,
affairs, customers, suppliers, pricing or other financial
information of the Company to any third party whatsoever.
14.2 The Customer may disclose the Company’s confidential
information (i) to its employees, officers, representatives or
advisers who need to know such information for the purposes of
carrying out its obligations to the Company under the Contract,
provided that such employees, officers, representatives and advisors
to whom the Customer discloses such information comply in full with
this Condition; and (ii) as may be required by law, court order or
any government or regulatory authority, provided that the Customer
gives as much advance notice of such disclosure to the Company, as
14.3 The Customer shall not use the Company’s confidential
information for any purpose other than to perform its obligations
under the Contract.
15. ADDITIONAL TERMS
15.1 Failure or delay on the part of the Company in enforcing
any provision of the Contract shall not be construed as a waiver of
any of the Company’s rights under the Contract. Any waiver by the
Company of any breach of, or any default under, any provision of the
Contract by the Customer shall not be deemed to be a waiver of any
subsequent breach or default and shall in no way affect the other
terms of the Contract.
15.2 If any provision of the Contract is found by any Court,
tribunal or other administrative body of competent jurisdiction to
be wholly or partly illegal, invalid, void, voidable, unenforceable
or unreasonable it shall to the extent of such illegality,
invalidity, voidness, voidability, unenforceability or
unreasonableness be deemed severable and the remaining provisions of
the Contract and the remainder of such provision shall continue in
full force and effect.
15.3 The Company, but not the Customer, may assign its rights and
obligations under the Contract.
15.4 Any written communication given pursuant to the Contract must
be sent by pre-paid first class post to the registered office of the
addressee or such other address as may have been notified in writing
and shall be deemed to have been received by the addressee two days
after the date of posting.
15.5 The parties to the Contract do not intend that any term of the
Contract will be enforceable by virtue of the Contracts (Rights of
Third Parties) Act 1999 by any person who is not a party to it.
15.6 The Contract shall be governed by the laws of England and the
Company and the Customer agree to submit to the non-exclusive
jurisdiction of the English Courts.
15.7 If the Customer is a partnership the liability of the
individual partners to the Company shall be joint and several.
15.8 The signature on behalf of a Customer who is a limited company
by any person purporting to sign with the Customer’s authority shall
bind the Customer and the Customer shall be liable to comply with
the terms of the Contract.
15.9 The Customer shall be liable to comply with the terms of the
Contract and pay for any Products which are ordered by it.
15.10 The Company reserves the right to amend these Terms and
Conditions from time to time by posting updated versions on its