1. DEFINITIONS AND INTERPRETATIONS
1.1 In these terms and conditions:
Reference to “we” and “us” is a reference to KuBu Spa.
Reference to “you” is a reference to the purchaser of the Goods from us.
“Contract” means the contract between us for the sale and purchase of the Goods which incorporates these Terms.
“Goods” means ‘items purchased via the KuBu Spa Ltd Websiteand any other items purchased by you from us.
“Terms” means these terms and conditions.
1.2 These Terms are the only terms and conditions on which we contract for the sale of Goods and they form an integral part of the Contract between us. If we agree to vary any of the terms, the variation must be in writing confirmed by our duly authorised representative and by you.
2.1 The price of Goods quoted on our website includes VAT (Value Added Tax). Where VAT is not included in the price, it will be added and payable by you at the appropriate rate.
2.2 The cost of packaging and postage/carriage is shown separately and (in the case of special or overseas orders) will be quoted by us on request and payable separately from the price of the Goods.
2.3 All published prices are subject to change at any time without notice.
3. ORDERING GOODS ONLINE
3.1 You warrant to us that all information which you are required to provide when ordering Goods online is accurate and complete in all respects at the time of the order and that this information relates to you/the person placing the order and not to any third party.
3.2 When an order is made online, the order confirmation issued by the company clearing the credit/debit card payment does not constitute acceptance of your order by us. We reserve the right to check any discrepancies and an order will only be confirmed when it is verified by us.
3.3 Any error in any ordering process due to technical or other reasons beyond our control entitles us not to treat the order as being binding on us.
If you place an order, you will have to provide personal information to us. We will not disclose that information to any third party without your consent, except for the purpose of processing the order and arranging delivery.
5.1 All payment for Goods and for the cost of packaging and delivery must be made before the Goods are delivered.
5.2 Payment online will be made by credit or debit card. At our discretion, we may accept payment by cheque or other means. In all cases, delivery will not occur until we are satisfied that the payment has been made. In the case of a payment by cheque, this will be after the cheque has been cleared.
6.1 We will give you an estimated delivery date for the Goods but no times or dates provided by us are guaranteed.
6.2 We will arrange for packing and we will decide on the method of delivery either by post, courier or otherwise.
6.3 You must notify us promptly and in any event within 48 hours or receipt of any Goods if they appear to be damaged in transit. In those circumstances, you must also keep all packaging as this may be required when making a claim.
7.1 You will have a right to cancel an order within 7 working days from the date that you receive the Goods. Cancellation must be confirmed to us by notice in writing.
7.2 You must take reasonable care of all Goods in your possession and return them to us, appropriately packaged to avoid damage, within 7 days from the cancellation date. We reserve the right to arrange collection, in which case you will be responsible for collection charges.
7.3 We will refund the purchase price to you within 30 days of the cancellation notice but we reserve the right to charge a restocking fee and any other reasonable costs we incur in connection with the return of the Goods.
7.4 In the case of Goods which are made and supplied to your specification or which have been personalised for you, you will not have the right to cancel the Contract.
8. RISK AND OWNERSHIP
8.1 The risk of loss or damage to Goods passes to you upon delivery. If you have agreed to collect the Goods from us, the risk in those Goods passes to you on collection (or 7 days after the agreed collection date if you have not collected the Goods by then).
8.2 Ownership in all Goods remains with us until full payment of all amounts due to us have been received from you.
8.3 You will be responsible for the safe custody and insurance of all Goods in your possession.
8.4 You have no right to re-sell any Goods until payment has been received in full by us.
9. WARRANTIES AND LIABILITY
9.1 We warrant to you that the Goods ordered by you will meet the description as shown on our website (or any other description given to you in writing).
9.2 We will not have any responsibility for any damage which occurs to the Goods after delivery.
9.3 If any defect in any Goods appear within [6 months] of delivery, you must notify us as soon as you become aware of the defect, giving us full details. We will then decide, in consultation with you, whether the defect is our responsibility. If so, we may arrange either to repair the defective Goods or to replace them with similar Goods. Any defective Goods to be returned to us must be returned at your expense.
9.4 We will not accept any responsibility for any wear and tear, accidental damage or failure by you or by any third party to adhere to any written recommendation provided in relation to the Goods.
9.5 Liability to you for loss or damage shall under no circumstances exceed the total amount you have paid us for those Goods. (However, we acknowledge that we cannot exclude legal liability for death or personal injury which is proved to be due to our negligence).
10.1 If you wish to give us any notice relating to a matter covered by these Terms, whether you telephone us or not, you must confirm that notice in writing. In the case of email notices, these are to be sent to email@example.com you must send them so as to return an acknowledgement of receipt. Notice may be sent by first class post to KuBu Spa, 16 Bell Street, Henley on Thames, Oxfordshire, RG9 2BG.
11. CUSTOMER DEFAULT
then, in any of those events, we have the right to cancel the Contract and recover possession of any Goods which have been supplied for which payment has not been received in full.
12. FORCE MAJEURE
We will not have any liability to you if we are prevented from performing any of our obligations on account of any circumstances beyond our reasonable control including, but not limited to, fire, flood, act of nature, terrorism, war, internet disruption, power failure, strike or difficulty in obtaining materials and/or labour. In any of these circumstances we reserve the right to cancel (or, at our option, to suspend) the Contract.
13.1 Severance: If any provision in these Terms is held by a court to be unenforceable, that will not affect the remaining provisions of the Terms.
13.2 Entire Agreement: These Terms govern our relationship with you and in accepting them, you confirm that no other arrangement, agreement or representation applies.
13.3 Assignment: We reserve the right to assign any of our rights or obligations under the Contract to a third party on the basis that the existing contractual terms will become the responsibility of that third party. You will not be able to assign any of your rights or obligations without first getting our written consent.
14. INTELLECTUAL PROPERTY
Where the Goods include designs or works of art, these are prepared by a designer or artist who owns the copyright in those works. You have no right to make any copies or adaptations of any of those Goods.
15.1 If there is a dispute which we cannot settle by direct negotiation, we may require that it is referred to mediation before any legal proceedings are commenced. In that event, the mediation will be conducted in accordance with the CEDR (Centre for Effective Dispute Resolution) mediation rules current at the date of the dispute.
15.2 Any dispute between us will be finally determined by the English courts and you agree to submit to the jurisdiction of those courts.
16. GOVERNING LAW
These Terms and the Contract between us are governed by English law.
A179 STANDARD TERMS & CONDITIONS OF SALE OF GOODS ONLINE
Please note that these Explanatory Notes are for guidance only and do not form part of the contract
These terms and conditions for the sale of goods online should be displayed on the website where goods are being sold. The terms and conditions should be easily accessible by visitors to the website. In addition, a customer who wishes to purchase goods online, using a credit card or some other payment method, should be required to confirm that he/she has read the terms and conditions and accepted them before proceeding to the checkout. In order to have evidence that the customer is aware of the terms on which goods are sold, the usual system is to have a ‘tick box’ which must be ticked by the customer confirming that the terms and conditions have been read before the sale process can be concluded.
The sale of goods online is subject to quite a lot of regulation. The key features of the ‘Distance Selling’ regulations in the UK are:
For more information on legislation and regulations governing the sale of goods and services and consumer protection, there are various Government and other websites that provide useful information including DirectGov - http://www.direct.gov.uk – and the Office of Fair Trading - http://www.oft.gov.uk/.
You are advised to check before finalising your Terms & Conditions.
Please note: Our Terms & Conditions contain some blanks and some wording in italics and/or square brackets. You should be sure to replace these with relevant information before you publish your Terms & Conditions. You also need to go through the Terms and change anything that does not apply to your business.
Turning to the detailed clauses, comments are set out below:-
1. DEFINITIONS AND INTERPRETATION
The name of the company selling goods should be inserted as indicated. Also, you must identify clearly the “Goods” which are being sold.
Clause 1.2 is designed to make it clear that the seller’s terms and conditions will take precedence: online sellers do not have too much of a problem here but in other situations, a purchaser may confirm that he wishes to buy on his own terms and conditions and an argument can then develop as to whose terms and conditions actually apply to the contract – this is known as the “battle of the forms”.
It is a legal requirement that the price of goods is clearly shown and that the website makes it clear whether VAT is included or excluded. In addition, the cost of packaging and postage must be identified and shown. The wording in clause 2.2 is designed to reflect this but it may have to be adjusted depending on what information is provided on the website.
3. ORDERING GOODS ONLINE
In clause 3.1 the customer is required to “warrant” that the information that he provides when he purchasing is accurate – this is intended to protect the seller against credit card fraud, although in practice this can be difficult.
Clause 3.2 attempts to deal with this problem in another way: when a credit or debit card payment is made online, it sometimes happens that the details provided to the company processing the payment do not fully match the details held by the customer’s bank. In spite of this, the banks will sometimes allow the payment to proceed. A discrepancy will usually be highlighted by the company processing the payment and this will then enable the seller to make some further enquiries before dispatch of goods. Worldpay, for example, notifies the seller with a ‘Caution’ or a ‘Warning’ depending on the perceived level of risk.
Clause 3.3 is designed to give the seller some protection if there is any technical error which arises.
The Data Protection Act controls what people can do with information which is provided to them. The wording of this clause may need to be amended if, for example, the seller is intending to supply lists of customers to a third party, then the consent of the customer should be obtained.
This is reasonably self-explanatory and makes it clear that, whatever method of payment is used, payment must be received in full before the goods are dispatched. This again can give protection if a credit card payment is cancelled.
It is possible that the delivery date will be specified on the website but if not, it should be provided by the seller and since deliveries cannot always be guaranteed, clause 6.1 is intended to give the seller some protection. Unless otherwise stated in the terms, delivery should be within 30 days.
Clause 6.3 requires the customer to give prompt notice if the goods arrived in a damaged state.
There are, as mentioned, numerous regulations with regard to “distance selling” whereby a customer has the right to cancel an order within seven working days from the date he/she receives the goods. This clause is intended to comply with those regulations.
The seller is entitled to impose certain cancellation charges on the customer and this is covered by clauses 7.2 and 7.3.
Under the distance selling regulations, goods which have been personalised for the customer or which have been made to the customer’s specification are excluded from the cancellation provisions and this is made clear by clause 7.4.
8. RISK AND OWNERSHIP
Once the goods are delivered to the customer, the customer becomes responsible for loss or damage. Clause 8.1 also allows for the risk to pass to the customer if there is an arrangement whereby the customer agrees to collect the goods but fails to do so within a specified period.
Under clause 8.2, the seller retains ownership until all payments have been received – this gives the seller the right to recover the goods if they are delivered before full payment has been received.
9. WARRANTIES AND LIABILITY
Under the general law there are implied warranties on the part of the seller – that the goods which he is selling will meet the description and that they will be reasonably fit for the purposes for which they are required etc. This clause contains a fairly basic warranty on behalf of the seller.
Under clause 9.3, the seller in effect offers a guarantee that if within a specified period any defect in the goods appears, then the seller will either repair or replace those goods, but the cost of return is at the customer’s expense. Clauses 9.4 and 9.5 are designed to limit the seller’s liability. Here gain there are laws designed to protect the purchaser and the seller should check the legal position.
Whenever a claim arises, it is sensible to have a formal method of giving notices and that is dealt with here. If goods are being sold online, it may be logical for e-mail notices to be accepted but the seller might prefer to have a more traditional method of notice – e.g. by fax or post.
11. CUSTOMER DEFAULT
This clause sets out grounds on which the seller has the right to cancel the contract and recover possession of any goods which might have been delivered.
12. FORCE MAJEURE
Certain unforeseen circumstances beyond the control of the parties might prevent the seller from making a delivery in accordance with the terms and this is covered here. The seller can cancel or suspend the contract in those circumstances.
There are some fairly standard clauses known as ‘boiler plate’ clauses which lawyers like to see in agreements of this type and some of them are set out here.
14. INTELLECTUAL PROPERTY
Where goods which are sold are subject to Intellectual Property rights – e.g. a work of art or a piece of sculpture, sale of the goods does not give unlimited freedom to the purchaser: copying a work of art and then selling it would require the consent of the artist.
If there is a problem that cannot be resolved amicably, this clause allows for the possibility of mediation and, failing that, a dispute will be referred to the English courts. Mediation is a process where an independent third party endeavours in an informal meeting to resolve a dispute and it is a lot cheaper than the court processes. See our free documents for more information on Dispute Resolution.
16. GOVERNING LAW
Since the contract is written with English law in mind, this is the law which governs the contract.