Conditions Of Sale
Würth UK Ltd Website Conditions of Sale (2015)
1. Definitions and interpretation
1.1 In these Conditions of Sale (hereafter, the “Conditions”) the following words and phrases shall have the following meanings:
“Company” means Würth UK Limited (company number: 01124802) whose registered office is at: 1 Centurion Way, Erith, Kent, DA18 4AF.
“Contract” means a contract between Company and Purchaser for the sale of Goods to Purchaser incorporating these Conditions.
“Goods” means all goods agreed to be sold under the Contract.
“Purchaser” means the purchaser of the Goods.
“Order Confirmation” means a written confirmation by Company of an Order on Company’s then-standard form of order confirmation template, including details of Purchaser, specification, quantity and price of the Goods, projected delivery dates, and any special terms specific to that purchase.
“Order” means a request (whether oral or in writing) by Purchaser to purchase Goods from Company via the Site.
“Site” means the Wurth web-shop at eshop.wurth.co.uk.
“Subscription Service” means the online service enabling Purchaser to enjoy continuous and regular deliveries of Goods at fixed intervals determined by Purchaser, as outlined further at clause 6.
1.2 In these Conditions, unless the context requires otherwise: (i) a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); and (ii) reference to a “party” means the parties to the Contract and includes their respective successors or permitted assigns.
1.3 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted, and includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.4 Any reference to “writing” or “written” includes faxes and e-mails.
1.5 Company may amend these Conditions from time to time as set out in clause 12. Purchaser should regularly check these Conditions to ensure it understands the terms which will apply at that time it places any Order for Goods.
2. Formation of the Contract
2.2 If Purchaser refuses to accept these Conditions, Purchaser shall be prohibited from ordering Goods from the Site. Company’s shopping pages will guide Purchaser through the steps Purchaser needs to take to place an Order. Purchaser should check its Order carefully before submitting it. However, if Purchaser needs to correct any errors Purchaser can do so before submitting its Order.
2.3 After Purchaser places its Order, Purchaser will receive an email from Company acknowledging that Company has received its Order. However, please note, this does not mean that Purchaser’s Order has been accepted. Company’s acceptance of Purchaser’s Order will take place as described in clause 2.7.
2.4 Company may contact Purchaser to let Purchaser know that Company does not accept Purchaser’s Order. This is typically for the following reasons:
(i) the Goods are unavailable;
(ii) Company cannot authorise Purchaser’s payment;
(iii) Purchaser is not allowed to buy the Goods from Company;
(iv) Company is not allowed to sell the Goods to Purchaser;
(v) Purchaser has ordered too many Goods;
(vi) there has been a mistake on the pricing or description of the Goods.
2.5 The Order constitutes an offer by Purchaser to purchase the Goods in accordance with these Conditions. Purchaser shall be responsible to Company for ensuring the accuracy of the terms of any such Order (including any applicable specifications) and for giving Company any necessary information relating to the Goods within sufficient time to enable Company to perform the Contract in accordance with its terms.
2.6 Any quotation given by Company shall be valid only for the period stated in the quotation (or, if none is stated, for 30 days from its date of issue). Such quotation is an invitation to treat and shall give rise to no legal obligation on the part of Company.
2.7 If Company notifies Purchaser that the sale of Goods is subject to an Order Confirmation, the Contract shall come into existence when such Order Confirmation is signed by Purchaser and returned to Company. In all other cases, the Contract shall come into existence, subject to these Conditions, when Company agrees (orally or in writing) to the Order placed by Purchaser and all key terms of such Order (including as to price and delivery) have been agreed between the parties. No other confirmations, agreements, representations, acts or communications of whatever nature by or on behalf of the Company shall create a Contract between the parties.
2.8 Any typographical, clerical or other error or omission in any sales literature, quotation, price list (including online pricing) or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.9 All drawings, descriptive matter, weights, dimensions and shipping specifications submitted in an Order, and all descriptions and illustrations contained in the Company’s catalogues, price lists and other advertisements materials, are deemed to be approximate or indicative only.
2.10 The Contract may not be cancelled by Purchaser except with the agreement in writing of Company and on the terms that Purchaser shall indemnify Company in full against all loss (including loss of profit), costs (including all costs of labour and materials used), damages, charges and expenses incurred by Company as a result of the cancellation.
2.11 Purchaser shall, in respect of all Goods which are manufactured in accordance with Purchaser’s specifications or processes, indemnify Company against all loss, damage, costs and expenses awarded against or incurred by Company (including costs of its professional advisers) in connection with (i) any third party claim brought against Company that the Goods and/or use or application of such specifications or processes infringe any rights of such third party, and (ii) any product liability claim in respect of such Goods which, but for Purchaser’s specifications or processes, would not have arisen. Purchaser shall provide Company with all reasonable assistance that Company may seek in connection with the defence and/or settlement of any such claim.
2.12 Company may, without notification to Purchaser, amend its specifications or manufacturing processes for Goods the subject of the Contract where it is necessary or desirable to do so in order to comply with applicable safety, statutory or regulatory requirements in force and/or shortly to enter into force, provided that such amendments do not materially affect the quality or performance of the Goods.
3. Price and payment
3.1 The price of the Goods shall be as set out in the Order Confirmation, or as otherwise agreed by Company at the time of accepting the Order; provided that Company may in its discretion apply a reasonable additional charge for carriage of the Goods. All amounts stated shall be exclusive of any applicable value added tax, which Purchaser shall pay in addition to the principal sum at the rate and manner prescribed by law.
3.2 Company reserves the right to increase the price of the Goods or delivery thereof to reflect any increase in cost to the Company which is due to (i) any external factor beyond the reasonable control of Company, (ii) any request by Purchaser to change the delivery date(s), quantities, types or specifications of Goods ordered, (iii) any delay caused or requested by Purchaser relating to or affecting the cost of manufacture and/or delivery of the Goods, or (iv) failure of Purchaser to give Company adequate or accurate information or instructions.
3.3 Company may invoice Purchaser for the Goods on or at any time after completion of delivery.
3.4 Purchaser shall pay each invoice within thirty (30) days of the date of that invoice. Payment shall be made to the bank account nominated by Company in writing. Payment shall be made in full and unconditionally and without asserting any credit, or any withholding, set-off or counterclaim. Time of payment is of the essence.
4.1 The Goods will be delivered by normal commercial means to a location in Great Britain or the Channel Islands as agreed between the parties (and, where applicable, as stated in the Order Confirmation). Delivery shall take place during normal business hours. Delivery shall occur at the point where the Goods first enter upon Purchaser’s premises. It is Purchaser's responsibility to receive and unload the Goods promptly upon arrival at its premises.
4.2 Any dates quoted for the delivery of the Goods are approximate only. Company shall use reasonable endeavours to deliver the Goods on or before stated delivery dates; however time for delivery shall not be of the essence of the Contract, and Company shall not be liable for any delay in delivery of the Goods however so caused.
4.3 Where the Goods are to be delivered in instalments, failure by Company to deliver any one or more of the instalments in accordance with these Conditions, or any claim by Purchaser in respect of any instalment, shall not entitle Purchaser to cancel any other instalment.
4.4 If Purchaser fails to take delivery of the Goods or fails to give Company adequate delivery instructions at the time stated for delivery then (without prejudice to any other right and remedy available to Company, including specific performance) Company may: (i) store the Goods until actual delivery and charge Purchaser the reasonable costs (including insurance) for such storage, or (ii) sell the Goods at the best price readily obtainable and (after deducting reasonable storage and selling expenses) account to Purchaser for the excess over the price under the Contract or charge Purchaser for any shortfall below the price under the Contract.
4.5 If the Goods are to be delivered outside the United Kingdom, Purchaser shall be responsible at its own cost for complying with all applicable laws and regulations governing export or import of Goods and for obtaining all required export or import authorisations and paying all related taxes and duties.
4.6 If Company fails to deliver the Goods in circumstances in which Company is liable to Purchaser for such non-delivery, its liability shall be limited to the costs and expenses incurred by Purchaser in obtaining replacement Goods of similar description and quality in the cheapest market available, less the price of Goods specified under the Contract.
5. Risk and title
5.1 Risk in the Goods shall pass to the Purchaser upon delivery to Purchaser.
5.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the legal title in the Goods shall not pass to Purchaser until Company has received payment in full for the Goods and any other goods agreed to be sold by Company to Purchaser whether or not payment has become due.
5.3 Until such time as the legal title in the Goods passes to Purchaser, Purchaser shall hold the Goods as Company’s fiduciary agent and bailee, and shall keep the Goods separate from those of Purchaser and any third parties and previous goods obtained from Company and properly store, protect and insure such Goods so as to be identifiable as Company’s property. Purchaser shall under no circumstances modify, tamper with or deal in any way with the Goods until full legal title in those Goods has passed to Purchaser. Notwithstanding the foregoing, Purchaser shall be entitled to resell the Goods in the ordinary course of its business provided that where there are tangible proceeds from the sale of the Goods, they shall not be mixed with the property of the Purchaser, any third parties or previous goods obtained from Company and shall be properly stored, protected and insured and shall be held to the order of Company.
5.4 Company and/or its authorised representatives shall be entitled upon reasonable notice during normal business hours to enter upon the premises of Purchaser or any third party where the Goods are stored in order to verify compliance by Purchaser with clause 5.3.
6. Subscription service
The following terms shall apply to Goods ordered via the Subscription Service:
6.1 If Purchaser has signed up to the Subscription Service, it may create subscription orders for Goods in Company’s online shop which will constitute a regular, periodic supply of Goods at delivery intervals specified by Purchaser. Purchaser may create subscription orders for several different types of Goods, but each subscription order must include only one specified delivery interval and delivery address.
6.2 Creating a subscription order and pressing the “order now and save as subscription order” button on the Subscription Service page of Company’s online shop constitutes an offer by Purchaser, which is capable of acceptance by Company. The subscription order shall only be deemed to be accepted when the Supplier issues a written acceptance of the subscription order via email, at which point the contract for the sale of the Goods shall come into existence. No other act shall constitute acceptance by Company. The Goods are packed and shipped to the delivery address specified by Purchaser.
6.3 Purchaser may modify the delivery interval and the delivery address and otherwise amend each subscription order at any time before the day of its execution via Company’s online shop.
6.4 Subscription orders may be cancelled by either Company or Purchaser on not less than 30 days’ notice in writing, or in the case of Purchaser, via Company’s online shop. Multiple subscription orders must be cancelled or deactivated individually.
6.5 Company shall prepare an invoice for every subscription delivery in accordance with the contract agreed between Purchaser and Company.
6.6 Except in cases where a fixed price has been agreed for the Goods, Company reserves the right to amend prices for any undelivered subscription order Goods:
(i) by giving not less than two weeks’ written notice to Purchaser, such amendment to take effect in respect of any relevant Goods delivered after the expiry of such notice; or
(ii) with immediate effect by written notice to Purchaser, where such increase arises as a consequence of any increase in the direct cost to Company of supplying the relevant Goods which is due to any factor beyond the control of Company.
7. Overdue invoices
7.1 Where an invoice has not been paid by its due date, then (without prejudice to and in addition to any other right and remedy available to Company, including to terminate the Contract and seek damages from Purchaser), Company shall be entitled to:
(i) charge interest (both before and after judgment) on any outstanding amount at the prevailing rate under the Late Payment of Commercial Debts (Interest) Act 1998, such interest to accrue on a daily basis from the due date for payment until the date of actual payment of the overdue amount, whether before or after judgment; and/or
(ii) require Purchaser forthwith to deliver up all Goods for which legal title remains in Company, and if Purchaser fails to deliver up such Goods, Company and/or its authorised representatives shall be entitled to enter upon the premises of Purchaser or any third party where the Goods are stored to take possession of them (in which respect Purchaser shall inform Company of the whereabouts of such Goods and shall provide its full assistance and co-operation in procuring the delivery to or the collection by Company of such Goods); and/or
(iii) the Company shall be entitled to suspend any further deliveries of the Goods (under the Contract or any other contract between the parties) until such invoices are paid in full.
8.1 Subject to the conditions set out in Clause 8.2 below, Company warrants that the Goods will be free in all material respects from defects in material and workmanship (the “Warranty”) for a period of six months from the date of delivery of the Goods (the “Warranty Period”).
8.2 The Warranty in Clause 8.1 is given by Company subject to the following conditions:
(i) the Warranty shall not apply to any Goods that have any defects arising from fair wear and tear or any of the following acts or omissions of Purchaser: wilful damage, negligence, misuse or alteration or repair of the Goods without Company’s written approval;
(ii) the Warranty shall not apply to any Goods that have passed their stated expiry date;
(iii) the Warranty shall not apply to any Goods if the total price for the Goods has not been paid by the due date for payment;
(iv) the Warranty shall only apply to Goods for which notification has been made in accordance with Clause 9.3 below; and
(v) the Purchaser must return the Goods with all component parts along with any promotional items received at the time of purchase, in its original packaging or a suitable equivalent.
8.3 Where a valid claim is made under Clause 8.1 above:
(i) in the case of Goods manufactured by the Company, the Company shall make good, free of charge, either by replacement or repair, at its entire discretion, defects which under proper use, appear therein.
(ii) in the case of Goods which are not manufactured by the Company, the Purchaser is entitled only to such benefits as the Company may receive under any guarantee or warranty given to it from a third party in respect thereto.
8.4 To the fullest extent permissible by law, the Warranty is the Purchaser’s exclusive remedy in respect of any fault, defect or failure of any Goods or non-compliance with any specifications.
9. Warranty claims and Returns Policy
9.1 Within 7 days of the date of delivery of the Goods, Purchaser shall undertake a thorough inspection and (where reasonably possible to do so) test of the Goods.
9.2 Purchaser must notify Company of any partial or incorrect deliveries, or non-delivery, of the Goods within 7 days of the delivery (or scheduled delivery). Subject to verification of such delivery with its carrier, Company shall remedy any such partial or incorrect delivery as soon as reasonably possible and free of charge to Purchaser.
9.3 Purchaser must notify Company of any defect or failure of the Goods, for which Purchaser wishes to claim under the Warranty, within 7 days of the delivery of the relevant Goods or, where the defect or failure was not apparent on reasonable inspection, within 7 days of the date of discovery of such defect or failure. Failure by Purchaser to notify Company of any defect or failure within the periods stated in this clause shall constitute a waiver by the Purchaser (in respect of the Goods in question) of its rights under the Warranty and of any other claims based on or relating to such defects or failures.
9.4 Without prejudice to its rights under the earlier provisions of this clause 9, Purchaser shall have the right to return any item of Goods, under and in accordance with Company’s published returns policy (as published from time to time), in all cases provided that: (i) Purchaser notifies Company within 30 days of delivery of the Goods by telephone on 03300 555444 or email to email@example.com, stating account number, invoice number and details of the Goods; (ii) all Goods must be returned to Company unused and complete, in a saleable condition, in their original packaging, and together with all component parts and any promotional items received by Purchaser at the time of purchase; and (iii) this right shall not apply where notified by Company, or in the case of any Goods made to Purchaser’s specifications, or as otherwise stated in Company’s then-current returns policy. All returns falling within the above returns policy shall be organised and undertaken by Company, at Company’s cost.
10.1 Nothing in the Contract shall exclude or restrict Company's liability: (i) for death or personal injury caused by negligence of Company or any of its agents or sub-contractors; (ii) for defective products under the Consumer Protection Act 1987; (iii) for fraud or fraudulent misrepresentation; (iv) for breach of the obligations arising from section 12 of the Sale of Goods Act 1979; (v) for breach of the obligations arising from section 2 of the Supply of Goods and Services Act 1982; or (vi) for any other matter for which it would be illegal to exclude or restrict or attempt to exclude or restrict liability.
10.2 Subject to clause 10.1 above, Company shall not be liable to Purchaser, whether in contract, tort (including negligence), breach of statutory duty or otherwise for any: (a) direct or indirect loss of revenue, goodwill, profit, business, contracts, business opportunity, loss or corruption of data, information or software or loss of anticipated savings; or (b) any indirect or consequential, special or punitive loss, damage, costs or expenses, arising under or in connection with the Contract.
10.3 Subject to Clauses 10.1 and 10.2 above, the total aggregate liability of Company to Purchaser arising under or in connection with the Contract, shall not exceed the price of the Goods, whether such liability arises from a breach of contract, tort (including negligence), breach of statutory duty or otherwise.
10.4 In the event that any work carried out by Company for Purchaser is suspended or delayed for a period of 30 days or more at the request of or as a result of any default on the part of Purchaser, the Company shall in addition to any other right or remedy that it may have as a result of such suspension or delay, be entitled to payment upon the expiry of the period of 30 days, for all work carried out by it up to the date of commencement of such suspension or delay, together with all costs incurred by Company in relation to such work including but not limited to the costs of materials specially ordered, storage charges and other additional costs.
10.5 Subject as expressly provided in the Contract all warranties conditions or other terms implied by statute or common law (including the terms implied by sections 13-15 of the Sales of Goods Act 1979) are excluded to the fullest extent permitted by law.
11. Insolvency of Purchaser
11.1 If Purchaser becomes subject to any of the events listed in clause 11.2 below, or Company reasonably believes that Purchaser is about to become subject to any of them and notifies Purchaser accordingly, then, without limiting any other right or remedy available to Company under these Conditions or otherwise at law: (i) Company may cancel or suspend all further deliveries of the Goods (under the Contract or any other contract between the parties) without incurring any liability to Purchaser; (ii) any and all outstanding sums in respect of the Goods delivered to Purchaser shall become immediately due; and (iii) pending payment of outstanding sums in respect of Goods delivered to Purchaser, Company may require Purchaser forthwith to deliver up such Goods, and if Purchaser fails to deliver up such Goods, Company and/or its authorised representatives shall be entitled to enter upon the premises of Purchaser or any third party where the Goods are stored to take possession of them (in which respect Purchaser shall inform Company of the whereabouts of such Goods and shall provide its full assistance and co-operation in procuring the delivery to or the collection by Company of such Goods).
11.2 For the purpose of clause 11.1, the relevant events are: (i) Purchaser being dissolved or struck off the register of companies at which its registration is maintained; (ii) Purchaser has a winding up order made against it, or convenes a meeting, passes a resolution or takes any other step with a view to its winding-up, except for the purpose of a solvent reorganisation or consolidation; (iii) a receiver (including fixed charge or court appointed), administrative receiver, manager, insolvency practitioner or similar officer is appointed over the whole or a substantial part of the undertaking, property or assets of Purchaser, or a notice of intention to appoint any such officer is given or any other step taken to place Purchaser into administration; (iv) Purchaser is unable to pay its debts within the meaning of Insolvency Act 1986; (v) Purchaser enters into (or proposes to enter into) a composition, scheme of arrangement or voluntary arrangement with any of its creditors in respect of all or a material party of (or of a particular type of) its debts; (vi) any event occurs, or proceeding is taken, with respect to Purchaser in any foreign jurisdiction to which it is subject that has an effect equivalent or similar to any of the foregoing events; (vii) Purchaser suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; or (viii) Purchaser's financial position deteriorates to such an extent that in Company's reasonable opinion Purchaser's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy and/or the Company's title to the Goods or the proceeds of sale thereof may be adversely affected.
12. Company’s Right to Vary Conditions
Company may amend these Conditions from time to time. Every time Purchaser orders Goods from Company, the Conditions in force at the time of Purchaser’s Order will apply to the Contract between Company and Purchaser.
13.1 Purchaser confirms that it has authority to bind any business on whose behalf it uses the Site to purchase Goods.
13.2 The 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.
13.3 The courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
13.4 No variation of the Contract shall be binding unless agreed in writing by an authorised representative of the Company.
13.5 The Contract supersedes any prior contracts, arrangements and undertakings between Company and Purchaser in relation to the Goods and constitutes the entire contract between the parties relating to the subject matter. Purchaser agrees that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement or representation made to it and that its only remedies can be for breach of contract (unless the statement or representation was made fraudulently).
13.6 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may from the relevant time be notified pursuant to the provision to the party giving the notice. All notices (other than in relation to Warranty claims or return of Goods under clause 9) shall be sent by first class post or hand delivered and shall be deemed to be served 2 days (excluding weekends and national holidays) after the date of posting.
13.7 If any provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to render it valid, legal and enforceable. If such modification is not possible, the relevant provision or part provision shall be deemed struck out. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
13.8 A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.9 The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of Goods ordered by Purchaser, without liability to Purchaser, if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Company including (without limitation) acts of God, governmental actions, war or national emergency, acts of or threat of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to a party's workforce), restraints or delays affecting carriers, shortage of supplies or workforce, provided that if the event in question continues for a continuous period in excess of 90 days, Purchaser shall be entitled to give notice in writing to Company to terminate the Contract.
13.10 Where Company makes promotional items available to Purchaser at zero or negligible cost, it is the responsibility of Purchaser to ensure that the item is dealt with correctly for taxation purposes. The cost of the item in question for this purpose may be obtained on request from Company.
13.11 Any person who is not a party to the Contract shall have no right to enforce any term of the Contract against either Company or Purchaser under the Contracts (Rights of Third Parties) Act 1999.