Totalkare Ltd
ONLINE TERMS & CONDITIONS
TERMS & CONDITIONS FOR THE SUPPLY OF PRODUCTS AND SERVICES ONLINE
THESE TERMS & CONDITIONS RELATE TO ONLINE SALES MADE THROUGH THE TOTALKARE WEBSHOP
1.1 These pages set out the terms and conditions (“Terms”) on which we will supply products and/or services featured on our website (“Website”) to you.
1.2 These Terms will apply to any contract between us for our supply of products and/or services to you (“Contract”).
1.3 Please read these Terms carefully and make sure that you understand them, before ordering any products and/or services from our Website.
1.4 Your attention is particularly drawn to the provisions of clause 18 (our liability).
1.5 Please print a copy of these Terms or save them to your computer for future reference.
1.6 We may amend these Terms from time to time. Every time you submit an order to us via our Website then the Terms in force at the time of your order will apply to the resulting Contract (if any) between you and us.
1.7 Please note that we will only supply products and/or services to business customers. You are a business customer if you are purchasing products and/or services wholly or mainly in connection with your trade, business, craft or profession. We do not supply products and/or services to individual consumers for non-business purposes.
1.8 We only use personal data in accordance with our Privacy Notice which can be found on our Website.
1.9 We reserve the right to change the descriptions of our products and services and any related pricing on our Website without notice, from time to time. We reserve the right to discontinue any product or service at any time.
1.10 In these Terms “Business Days” shall mean a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
2. About us
2.1 We are Totalkare Limited a company registered in England and Wales under company number 5256574 and with our registered office at Block G1 Dandy Bank Road, Pensnett Trading Estate, Kingswinford, West Midlands DY6 7TD. Our VAT number is GB 409 7407 85.
2.2 Contacting us. For product related enquiries please telephone us on 0121 585 2724 or email sales@totalkare.co.uk and for service related enquiries please telephone us on 0121 585 2727 or email us on service@totalkare.co.uk
2.3 Should you notice anything that you wish to change regarding an order, for example a product purchased in error or a product option incorrectly specified, then you should contact us by email or call us as soon as possible.
3.1 The Contract. A contract will come into force between us in accordance with the provisions of clause 4.7. These Terms are the contractual terms that apply to and are incorporated in the Contract. They apply to the exclusion of any other terms that you may seek to impose or incorporate, or which are implied by law, trade, custom, practice or course of dealing.
3.2 Entire agreement. The Contract is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
3.3 Language. These Terms are made only in the English language.
4. Placing an order and its acceptance
4.1 Placing your order. Please follow the onscreen prompts to place an order. Each order is an offer by you to buy the products and/or services (as the case maybe) specified in the order subject to these Terms.
4.2 By placing an order the relevant individual confirms that they have the authority to bind in contract any company or business or entity on whose behalf they are using our Website to purchase the products and/or services in question.
4.3 You are responsible for checking the description of the products and/or services and for satisfying yourself that it is suitable for your intended purpose.
4.4 Correcting input errors. Our order process allows you to check and amend any errors before submitting your order to us. Please check the order carefully before confirming it. You are responsible for ensuring that your order is complete and accurate.
4.5 No oral / verbal statement or representation made by a member of our staff shall be binding upon us or form a term of the Contract unless given by a company director of Totalkare and subsequently confirmed in writing by the director or his nominee.
4.6 Acknowledging receipt of your order. After you place your order, you will receive an email from us acknowledging that we have received it, but please note that simply placing an order and receiving an acknowledgement of order from us does not bind us contractually.
4.7 Acceptance & Contract comes into existence. Our acceptance of your order will only take place when we inform you by email that we expressly accept your order. Only at this time will a binding Contract come into existence between us and the date of the Contract will be the date of our email expressly accepting your order. All orders placed are accepted at our entire discretion. If we are unable to accept your order (or any part of it) we will inform you of this by email as soon as reasonably practical.
4.8 If we cannot accept your order. If we are unable to supply you with the products and/or services ordered for any reason, we will inform you of this by email and we will not process your order. If you have already paid for the products and/or services, then we will refund you the full amount including any delivery costs charged.
5.1 The images of the products on our Website are for illustrative purposes only. Although we have made every effort to display the colours accurately, we cannot guarantee that your computer’s display of the colours accurately reflect the colour of the products. The colour of your products may vary slightly from those images.
5.2 The packaging of your products may vary from that shown on images on our Website.
5.3 We reserve the right to amend the specification of your products and/or services if required by any applicable statutory or regulatory requirement.
6. Cancellation return and refund
6.1 Cancellation Period: Subject to the terms of this clause 6 you may cancel a Contract and receive a refund if you notify us within the cancellation period. The cancellation period is a period of 10 days which starts on the day after the date that the Contract comes into force in accordance with clause 4.7. You must notify us that you wish to cancel the Contract in accordance with clause 6.4. Before attempting to cancel please contact us to make sure the right to cancellation applies in your case. Please see clause 2 for our contact details.
6.2 You cannot cancel the Contract for the provision of services once (a) we have commenced the provision of the services or (b) completed the provision of the Services, even if in both cases the 10 day cancellation period is still running.
6.3 Please note that the right to cancel does not apply as regards the following: (a) products made to order / bespoke products (b) products that are not a standard stock item of ours and (c) products that have been used by you. Our determination (acting reasonably) as to whether (a), (b) and/or (c) apply shall be conclusive.
6.4 Notification of cancellation: Where pursuant to the terms of this clause 6 you have a right to cancel and you wish to exercise it then you must notify us that you wish to cancel the Contract in writing by either: (a) emailing us at sales@totalkare.co.uk or (b) posting you cancellation request to Customer Services Block G1 Dandy Bank Road, Pensnett Trading Estate, Kingswinford, West Midlands DY6 7TD. When emailing or posting your cancellation request to us please include details of your order and order reference number to help us to identify it. A cancellation request made by email or by post is effective from the date you send us the email or post the letter to us. For example, you will have given us notice in time as long as you get your letter into the last post on the last day of the cancellation period or email us before midnight of the last day of the cancellation period.
6.5 If products have been delivered to you before you decide to cancel the Contract then you must return them to us without undue delay not later than 10 days after the day on which you notify us that you wish to cancel the Contract. Our returns address is Block G1 Dandy Bank Road, Pensnett Trading Estate, Kingswinford, West Midlands DY6 7TD.
6.6 You are responsible for the costs of returning all products to us. However where products are legitimately returned to us because they are faulty or misdescribed then we will reimburse you your reasonable return postage costs.
6.7 Where you cancel the Contract in accordance with the provisions of this clause 6 and you have previously paid us in full for the products and/or service in question, then we will refund you the price you paid (but not our original delivery costs) by the method you used for payment. However, in relation to products we may make deductions from the amount of the refund as described in clause 6.8 below.
6.8 We reserve the right to reduce your refund of the price of the products to reflect any reduction in the value of the products returned, if this has been caused by your handling of them in a way beyond what is necessary to establish the nature, characteristics and functioning of the products (such as handling the products over and above how you might reasonably handle them in a retail store situation). If we refund you the price paid before we are able to inspect the products and later discover you have handled them in an unacceptable way, you must pay us on demand an appropriate amount. In any event you must return all products unused and with all accompanying packing and product documentation. Failure to comply with this clause shall entitle us to make a reasonable deduction from the amount of any refund (which may be up to 100% of the price if the condition of the products returned in our reasonable opinion justifies this).
7. Delivery, transfer of risk and title
7.1 We will contact you with an estimated delivery date. We will use reasonable endeavours to meet any estimated delivery date but time for delivery shall not be of the essence.
7.2 Delivery of the products shall be completed on the arrival of the products at the delivery location set out in your order. Where we have agreed in writing that you or a carrier organised by you shall collect the product from us then Delivery shall be complete once the products have been collected by you and the products will be at your risk from that time.
7.3 We may deliver the products by instalments and any delay in delivery or defect in an instalment shall not entitle you to cancel any other instalment.
7.4 You will only own the products once we have received payment in full, including of all applicable delivery charges.
7.5 If you fail to take delivery within 10 days after the day on which we first attempt to make delivery (or where applicable the date on which we first make the products available for collection), then without prejudice to our other rights we may resell or otherwise dispose of part or all of the products and, after deducting reasonable storage and selling costs, account to you for any excess over the price of the products or charge you for any shortfall below the price of the products.
8. Storage of Products
8.1 This clause 8 applies in circumstances where we have (at our entire discretion) agreed in writing to a request from you to store products ordered (the Stored Products) for a defined period (the Defined Storage Period). In this regard you agree that notwithstanding our retention and storage of the Stored Products on your behalf:
8.1.1 the Stored Products shall be deemed to have been delivered to you on the first day of storage; and the first day of storage shall be as determined by us as being the date on which, but for the your request, we or our carriers, would ordinarily have delivered those products to you had clause 7.1 applied: and
8.1.2 we shall be entitled to render an invoice for the total price of the Stored Products on, or at any time after, the first day of storage which shall be payable in full by you without deduction or set off. We shall also be entitled to charge you storage costs at our then current rates.
8.2 If 10 Business Days pass after the expiry of the Defined Storage Period and you have not collected or accepted actual delivery of the Stored Products, then we may resell or otherwise dispose of part or all of the Stored Products and, after deducting reasonable storage and selling costs, account to you for any excess over the price of the Stored Products or charge you for any shortfall below the price of the Stored Products.
9. Product warranty
9.1 Unless:
9.1.1 a different warranty period for the product in question has been stated on our website (including the warranty period offered by the applicable manufacturer under terms of their customer product warranty); or
9.1.2 a different warranty period for the product in question has been expressly agreed with you and confirmed by us in writing
then the standard warranty period for products shall be as follows:
9.1.3 we warrant that new products sold will be free from defects in materials and workmanship and will conform in all material respects with any applicable product or services specification for the period of 12 months from the date of delivery (or collection as applicable) of the products to you; and
9.1.4 we warrant that reconditioned products and ex demonstration products sold will be free from defects in materials and workmanship and will conform in all material respects with any applicable product specification for the period of 6 months from the date of delivery (or collection as applicable) of the products to you.
9.2 Subject always to clause 9.3, if:
9.2.1 you give notice in writing to us during the warranty period and within 5 Business Days of the defect becoming apparent or suspected (or within 5 Business Days of when the defect ought reasonably have become apparent to or suspected by you);
9.2.2 we are given a reasonable opportunity of examining the products in issue as installed;
9.2.3 you (if asked to do so by us) provide photographic and/or video evidence of the products in issue; and
9.2.4 you (if asked to do so) return such products to our place of business at your cost.
then on accepting that the warranty claim is valid and falling with the terms of the warranty set out in clause 9.1, we shall in respect of:
9.2.5 new products, at our option, repair (where practical) or replace the defective products, or refund the price of the defective products (having deducted a reasonable amount as regards any period of operational use by you of the product);
9.2.6 reconditioned or ex-demonstration products and subject to the proviso of this clause, at our option, repair (where practical) or replace the defective products (including replacement with used or reconditioned parts), or refund the price of the defective products (having deducted a reasonable amount as regards any period of operational use by you of the product) provided always that as regards reconditioned and ex-demonstration products identical replacement parts / products may no longer be commercially available and in these circumstances we reserve the right to replace with equivalent parts / products where such equivalent parts / products do not have a material and detrimental impact on performance.
9.3 We shall not have any liability under the warranty set out in clause 9.1 if one or more of the following applies:
9.3.1 you make any further use of the products in issue after giving a notice in accordance with clause 9.2;
9.3.2 the defect or issues arises because you have failed to follow our instructions (and/or as applicable the instructions of a third party such as the manufacturer) as to the storage, installation, commissioning, use, servicing and maintenance of the product or (if there are none) good trade practice regarding the same;
9.3.3 the defect or issues arise as a result of our following any drawing, design or specification supplied by you;
9.3.4 you alters or repairs the products in issue without our written consent;
9.3.5 the defect or issues arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; and
9.3.6 you owe us any sums that have passed their due date for payment, whether in relation to the Contract or in relation to any other contract or account you have with us whatsoever.
9.4 Except as provided in this clause 9 we shall have no liability to you in respect of the products’ failure to comply with the warranty set out in clause 9.1. In particular we shall be under no liability in respect of any defects or faults arising after risk in the products has passed which is caused by any subsequent mechanical, chemical, electrolytic related event or other damage not due to an inherent defect in the products.
9.5 Any work and labour costs carried out by us which is not covered by the warranty set out in clause 9.1 will be charged for our current standard time and material rates.
9.6 The warranty set out in clause 9.1 shall apply to any repaired or replacement products supplied by us for such period of time as equals: (a) the unexpired period of the warranty at the time you gave notice in accordance with clause 9.2 or (b) 3 months, whichever is the longer period.
10. Services
- Descriptions and illustrations. Any general descriptions or illustrations on our Website are published for the sole purpose of giving an approximate idea of the services described in them. They will not form part of the Contract or have any contractual force.
- Compliance with specification. Subject to our right to amend the specification (see clause 3) we will supply the services to you in all material respects in accordance with the written specification for the services as agreed as part of the ordering and contracting process.
- Changes to specification. We reserve the right to amend the specification of the services if required by any applicable statutory or regulatory requirement or if the amendment will not materially affect the nature or quality of the services, and we will notify you in advance of any such amendment.
- Reasonable care and skill. We warrant to you that the services will be provided using reasonable care and skill.
- Time for performance. We will use reasonable endeavours to meet any performance dates specified to you, whether in our email accepting your order (see clause 7) or otherwise; but any such dates are estimates only and time shall not be of the essence.
- Your obligations as regards the services. It is your responsibility to ensure that:
- the terms of your order for services is complete and accurate;
- you cooperate with us in all matters relating to the services;
- where applicable, you provide us, our employees, agents, consultants and subcontractors, with access to your premises, office accommodation and other facilities as we may reasonably require;
- you provide us with such information and materials we may reasonably require in order to supply the services, and ensure that such information is complete and accurate in all material respects;
- you obtain and maintain all necessary licences, permissions and consents which may be required for the services before the date on which the services are to start;
- you comply with all applicable laws, including health and safety laws; and
- you keep all of our materials, equipment, documents and other property (Our Materials) at your premises in safe custody at your own risk, maintain Our Materials in good condition until returned to us, and not dispose of or use Our Materials other than in accordance with our written instructions or authorisation.
- If our ability to perform the services is prevented or delayed by any failure by you to fulfil any obligation listed in clause 6 (Your Default):
- we will be entitled to suspend performance of the services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the services, in each case to the extent Your Default prevents or delays performance of the services. In certain circumstances Your Default may entitle us, without prejudice to our other rights and remedies to terminate the Contract.
- we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the services.
11. Reservation of rights as regards our supply
11.1 We reserve the right to limit sales of products and/or our supplies of services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We also reserve the right to limit the quantities of any products and/or services that we offer.
12. Price of products and delivery charges
12.1 The prices of the products will be as quoted on our Website at the time you submit your order. We will take reasonable care to ensure to ensure that the prices are correct at the time when the relevant information was entered onto the system. However, please see clause 13 for what happens if we discover an error in the price of products you have ordered.
12.2 Prices for our products and/or services may change from time to time, but changes will not affect any order you have already placed.
12.3 Unless indicated otherwise, the price of the products includes the cost of delivery. Where delivery charges are to be charged in addition to the price of the products then you will be advised during the checkout process and before you confirm and submit your order.
13.1 The charges for the services shall be calculated and payable on the basis set out on our Website or as otherwise set out in writing by us and agreed by you. If any services are charged on a time and materials basis, then this will be in accordance with our daily fee rates, as displayed on our Website at the time you submit your order.
13.2 We shall be entitled to charge you for any expenses reasonably incurred by the individuals who we engage in connection with the services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by us for the performance of the services, and for the cost of any materials.
13.3 If you wish to change the scope of the services after the Contract has come into force and we agree to such change, we will modify the charges accordingly.
13.4 We take reasonable care to ensure that the prices and rates stated for the services are correct at the time when the relevant information was entered into the system. However, please see clause 15 for what happens if we discover an error in the price of the services you ordered.
13.5 Our charges for services may change from time to time, but changes will not affect any Contract has come into force (in accordance with clause 4.7)
14. VAT
14.1 The price of our products and the changes for our services are exclusive of value added tax (VAT) at the applicable current rate chargeable in the UK and where VAT is chargeable you must pay us such additional amount in respect of VAT at the same time as paying the price of the products and/ or the charges for the services (as the case maybe).
14.2 If the rate of VAT changes between the date of your order and the date of delivery, we will adjust the VAT you pay, unless you have already paid in full before the change in VAT takes effect.
15. Errors in pricing and charges
15.1 It is always possible that, despite our reasonable efforts some of the products and/or services on our Website may be incorrectly priced. If we discover an error in the price of the products and/or in the charges or rates of the services that you have ordered we will contact you in writing to inform you of this error and we will give you the option of continuing to purchase the products and/or services at the correct amount or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing. If we mistakenly accept and process your order where a pricing / charges / rates error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may cancel supply of the products and/or services and refund you any sums you have paid.
16. Payment terms
16.1 You can only pay for products and services using a debit card or credit card that we accept.
16.2 Payment for the products (and all applicable delivery charges) is in advance. We will charge your debit card or credit card upon the order being placed. Invoices will be emailed to you upon or following dispatch of the products.
16.3 If you fail to make a payment under the Contract by the due date, then, without limiting our rights and remedies you will have to pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 16.3 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
17. Intellectual property rights
17.1 All intellectual property rights in or arising out of or in connection with the services (other than intellectual property rights in any materials provided by you) will be owned by us.
18. Our liability: your attention is particularly drawn to this clause 18
18.1 Nothing in these Terms shall limit or exclude our liability for:
18.1.1 death or personal injury caused by our negligence;
18.1.2 fraud or fraudulent misrepresentation; and
18.1.3 in respect of any other matter where liability cannot be excluded or limited by law.
18.2 Subject to clause 18.1 we shall under no circumstances whatever be liable to you whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
18.2.1 any loss of profits, sales, business, revenue or goodwill (whether any of the foregoing are direct or indirect loss); and
18.2.2 any indirect, special or consequential loss.
18.3 Subject to clauses 18.1 and 18.2 our total liability to you in respect of all other claims arising under or in connection with a Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the sum of £500,000.
18.4 Nothing in these Terms shall detract from your duty to mitigate its loss. This clause 18 shall survive termination of the Contract.
18.5 Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, we will not be responsible for ensuring that the products are suitable for your purposes.
19.1 Without limiting any of our other rights, we may suspend the supply or delivery of the products and/or services to you, or terminate the Contract with immediate effect by giving written notice to you if one or more of the following occur:
19.1.1 you commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within 10 days of you being notified in writing to do so;
19.1.2 you fail to pay any amount due under the Contract on the due date for payment;
19.1.3 you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business [or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
19.1.4 you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; and
19.1.5 your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy.
19.2 Termination of the Contract shall not affect your or our rights and remedies that have accrued as at termination.
19.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
20. Force majeure event
20.1 Force majeure event means any circumstance not within our reasonable control including, without limitation: (a) acts of God, flood, drought, earthquake or other natural disaster; (b) events, acts or omissions, delays or other impairments caused by or as a consequence of epidemics or pandemics; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination; (e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; (f) fire, explosion or accident; (g) any labour or trade dispute, strikes, industrial action or lockouts; (h) the non or partial performance of contract by a supplier or subcontractor of ours (including circumstances where the non or partial performance of contract by a supplier or subcontractor of ours is as a result of any circumstances not within their reasonable control; (i) interruption or failure of utility service.
20.2 If we are prevented, hindered or delayed in or from performing any of our obligations under a Contract by a Force Majeure Event, then we shall not be in breach of the Contract or otherwise liable for any resulting failure or delay in the performance of our obligations. The time for performance of our obligations shall be extended accordingly.
20.3 We shall as soon as reasonably practicable after the start of the Force Majeure Event notify you in writing of the Force Majeure Event and to the extent known its likely or potential impact of our ability to perform any of our obligations under the Contract.
20.4 If as a result of a Force Majeure Event we have insufficient stock to meet all of our contractual commitments, then we shall be entitled to divide our available stock between our customers in such proportion at we determine.
21.1 When we refer to “in writing” in these Terms, this includes email.
21.2 Any notice or other communication given by one of us to the other under or in connection with the Contract must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, or email.
21.3 A notice or other communication is deemed to have been received:
21.3.1 if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;
21.3.2 if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
21.3.3 if sent by email, at 9.00 am the next working day after transmission (a working day being a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business).
21.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and in the case of email that the email was sent to the specified email address of the addressee.
21.5 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
22.1 Assignment and transfer. We may assign or transfer our rights and obligations under the Contract to another entity. You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
22.2 Variation. Any variation of the Contract only has effect if it is agreed in writing by you and us (or our respective authorised representatives).
22.3 Waiver. If we do not insist that you perform any of your obligations under the Contract, or if we do not exercise our rights or remedies against you, or if we delay in doing so, that will not mean that we have waived our rights or remedies against you or that you do not have to comply with those obligations. If we do waive any rights or remedies, we will only do so in writing, and that will not mean that we will automatically waive any right or remedy related to any later default by you.
22.4 Severance. Each clause of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
22.5 Third party rights. The Contract is between us and the applicable ordering company, partnership or other entity on whose behalf the order is placed by the applicable individual. Where the person ordering is a sole trader then the Contract is between us and that individual sole trader. No other person has any rights to enforce any of its terms.
22.6 Governing law and jurisdiction. This Contract is governed by English law and each party irrevocably agrees to submit all disputes arising out of or in connection with this Contract to the exclusive jurisdiction of the English courts.
Version 06.12.2021
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