Standard Terms and Conditions for the Supply of Goods to Wholesaler Customers
1. Welcome to Whispering Smith. Your relationship with us will be subject to the following terms and conditions:
1.1 Some of the words in the terms and conditions have specific meanings:- 1.1.1. “Customer”, “You” or “Your” means the person, firm or company shown in the Order with whom the Contract is made.
1.1.2. Conditions: means the terms and conditions set out in this document as amended from time to time in accordance with clause 15.
1. 1.1.3 “Contract” means the agreement made between Whispering Smith and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
1.1.4.”Goods” means the goods (or any part of them) set out in the Order. 1.1.5 “Order” means the Customer's order for the Goods, as set out in the Customer's purchase order form, in the Customer's written acceptance of Whispering Smith's quotation, or via the ordering process on the Website, as the case may be.
1.1.6 “Specification”: any specification for the Goods, including any related drawings that is agreed in writing by the Customer and Whispering Smith.
1.1.7 “Website” means Whispering Smith’s B2B website located at www.whisperingsmith.com.
1.1.8 “Whispering Smith”, “our”, “us” or “we” means Whispering Smith Limited (company number 01945392) trading as Whispering Smith whose registered office is at The Exchange, 5 Bank Street, Bury, BL9 0DN and their employees, agents and assigns. 1.2 The Customer acknowledges that it enters into the Contract in the course of its business and not as a consumer.
2. Basis of Contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing.
2.2 These terms and conditions apply to all Customers whether purchasing via our Website or otherwise. Some terms specifically apply to Website customers and these are clearly indicated below.
2.3 A quotation for the Goods given by Whispering Smith shall not constitute an offer. Our quotations lapse after 30 days (unless otherwise stated). The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.4 The Order shall only be deemed to be accepted when Whispering Smith issues a written acceptance of the Order, at which point the Contract shall come into existence. For Website customers such written acceptance will take place via email.
2.5 If we are unable to accept your Order (in part or in whole), we will inform you of this in writing and will not charge you for the relevant Goods. This might be because the Goods are out of stock, because of unexpected limits on our resources which we could not reasonably plan for, because a credit reference we have obtained for you does not meet our minimum requirements or because we have identified an error in the price or description of some or all of the Goods.
3.1 Non – website customers:
3.1.1 The price quoted for the Goods excludes VAT (unless otherwise stated). VAT will be charged at the rate applying at the time of delivery.
3.1.2 The price quoted excludes the costs and charges of delivery, insurance and transport of the Goods, which shall be invoiced to the Customer (unless otherwise stated).
3.1.3 Unless otherwise stated, the price quoted is an illustrative estimate only and the price charged will be our price current at the time of delivery.
3.1.4 Rates of tax and duties on the Goods will be those applying at the time of delivery.
3.1.5 At any time before delivery we may adjust the price to reflect any increase in our costs of supplying the Goods.
3.1.6 We may invoice you for the Goods on or at any time after the completion of delivery pursuant to clause 5.
3.2 Website customers:
3.2.1 The price of the Goods will be the price indicated on the Website and confirmed on the Order pages when you place your Order. We take all reasonable care to ensure that the price of the product advised to you is correct. However please see clause
3.2.5 for what happens if we discover an error in the price of the product you order.
3.2.2 Our delivery charges are as stated on the Website.
3.2.3 You will need to sign up and create an account via the account registration page in order to place your Order and view the prices, as detailed in clause 4 below.
3.2.4 The price quoted on the Website excludes VAT (unless otherwise stated). VAT will be charged at the rate applying at the time of payment.
3.2.5 It is always possible that, despite our best efforts, some of the products we sell may be incorrectly priced. We will normally check prices before accepting your Order so that, where the product's correct price at your Order date is less than our stated price at your Order date, we will charge the lower amount. If the product's correct price at your Order date is higher than the price stated to you, we will contact you for your instructions before we accept your Order. If we accept and process your Order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may end the Contract, refund you any sums you have paid and require the return of any Goods provided to you.
4. Creating a Website account
4.1 Anyone can access the Website using their web browser and internet connection. However, if you wish to purchase Goods from us via the Website you will need to sign up and create an account via the account registration page.
4.2 You must make sure that all the information you provide when you register with the Website is true, accurate, current and complete. Our accounts team will seek to verify the information provided prior to approving your account request.
4.3 If you change any of your registration details (e.g. email address, postal address), you must update your account.
4.4 To help us maintain the security of the Website, you must keep your registration details confidential. If you become aware of any misuse or unauthorised use of your registration details, then you must inform us immediately by sending us an email at firstname.lastname@example.org.
4.5 If you have breached, or we have justifiable reason to believe that you have breached, or will breach, these Conditions, we may terminate or suspend your registration and/or access to the Website and/or to any content made available on the Website. 4.6 You can close your account at any time as long as you do not have any outstanding Orders.
4.7 We reserve the right to delete your account and any personal data or other information associated with your use of the Website if there is no activity on your account for more than 36 consecutive months.
5.1 All delivery times quoted and/or provided via the Website are estimates only and the time of delivery is not of the essence.
5.2 If we fail to deliver within a reasonable time, you may (by informing us in writing) cancel the Contract, however: 5.2.1 you may not cancel if we receive your notice after the Goods have been dispatched; and 5.2.2 if you cancel the Contract, you agree and acknowledge that you have no further claim against us under that Contract.
5.3 If you accept delivery of the Goods after the estimated delivery time, it will be on the basis that you have no claim against us for delay (including indirect or consequential loss), or (in respect of non- Website sales) an increase in the price of the Goods.
5.4 We may deliver the Goods in instalments which shall be invoiced and paid for separately. Each instalment is treated as a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.5 We may decline to deliver if: 5.5.1 we believe that it would be unsafe, unlawful or unreasonably difficult to do so; or 5.5.2 the premises (or the access to them) are unsuitable for our vehicle.
5.6 Each delivery of the Goods will be accompanied by a delivery note that shows the date of the Order the type and quantity of the Goods, special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered,
5.7 For non-Website customers delivery takes place either: 5.7.1 at our premises (if you are collecting the Goods or arranging carriage). You shall collect the Goods within three working days of us notifying you that the Goods are ready. Delivery is completed on the completion of loading of the Goods at our premises; or 5.7.2 if we are arranging carriage, at the location set out in the Order or such other location as we may agree (Delivery Location). Delivery is completed on the completion of unloading of the Goods at the Delivery Location at any time after we notify you that the Goods are ready.
5.8 For Website customers delivery will take place at the Delivery Location. Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
5.9 If we fail to deliver the Goods, our liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. We shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure event as detailed at clause16 below (Force Majeure Event) or the Customer's failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.10 If the Customer fails to take accept delivery of the Goods within three working days of our notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or our failure to comply with our obligations under the Contract: a. delivery of the Goods shall be deemed to have been completed at 9.00 am on the third working day after the day on which we notified the Customer that the Goods were ready; and b. we shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
5.11 If ten working days after the day on which we notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery of them, we may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
5.12 We shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
6.1 The Goods are at your risk from the time of delivery as stated at clauses 5.7 or 5.8 as appropriate.
6.2 You must inspect the Goods on delivery. If any Goods are damaged (or not delivered), you must tell us orally by the next working day after delivery (or the expected delivery time) and confirm in writing within ten working days. You must give us (and any carrier) a fair chance to inspect the damaged Goods.
7. Payment terms
7.1 Non-Website customers
7.1.1 You shall pay us in cash or otherwise in cleared funds on delivery, unless you have an approved credit account. If you have set up a Website account, you may also pay any outstanding invoices via the Website by credit or debit card.
7.1.2 If you have an approved credit account, payment is due no later than 30 days after the date of our invoice unless otherwise agreed in writing.
7.1.3 Time for payment is of the essence. If you fail to pay us in full on the due date: 22.214.171.124 we may suspend or cancel future deliveries; 126.96.36.199 we may cancel any discount offered to you; 188.8.131.52 you must pay us interest at the rate set under s.6 of the Late Payment of Commercial Debts (Interest) Act 1998: a. calculated (on a daily basis) from the date of our invoice until payment; b. compounded on the first day of each month; and c. before and after any judgment (unless a court orders otherwise); 184.108.40.206 we may claim fixed sum compensation from you under s.5A of that Act to cover our credit control overhead costs; and 220.127.116.11 we may recover (under clause 7.1.7) the cost of taking legal action to make you pay and any other costs that we incur due to your failure to pay.
7.1.4 If you have an approved credit account, we may withdraw it or reduce your credit limit or bring forward your due date for payment. We may do any of these at any time without notice.
7.1.5 You do not have the right to set off any money you may claim from us against anything you may owe us. We may at any time, without limiting any other rights or remedies we may have, set off any amount owing to us by you against any amount payable by us to you.
7.1.6 While you owe money to us, we have a lien on any of your property in our possession.
7.1.7 You are to indemnify us in full and hold us harmless from all expenses and liabilities we may incur (directly or indirectly including financing costs and including legal costs on a full indemnity basis) following any breach by you of any of your obligations under these Conditions.
7.2 Website customers
7.2.1 Payment for the Goods and all applicable delivery charges is taken in advance. After signing into your account and choosing the Goods you wish to purchase, you place your Order for your Goods by pressing the ‘Pay Now’ button at the end of the check-out process and submitting your payment details to us. We accept payment via all major credit and debit cards. The check-out process will give you the opportunity to review and, if necessary, to change your selection of Goods and/or correct any errors in your Order information.
7.2.2 You will receive a receipt for your payment and an acknowledgement of your Order by email. However, please note that this does not mean that your Order has been accepted. Our acceptance of your Order will take place as described in clause 2.4.
7.2.3 If we are unable to accept your Order as detailed at clause 2.5 we will inform you of this by email and we will not process your Order. If you have already paid for the Goods, we will refund you the full amount as soon as possible, by the same method in which the payment was originally made.
8.1 Until you pay all debts you may owe us: 8.1 1 all Goods supplied by us remain our property; 8.1.2 you must store them so that they are clearly identifiable as our property; 8.1.3 you must insure them (against the risks for which a prudent owner would insure them) and hold the policy on trust for us; 8.1.4 you may use those Goods and sell them in the ordinary course of your business, but not if: a. we revoke that right (by informing you in writing); or b. you become insolvent (as detailed at clause 17.4 below).
8.2 You must inform us (in writing) immediately if you become insolvent.
8.3 If your right to use and sell the Goods ends you must allow us to remove the Goods.
8.4 We have your permission to enter any premises where the Goods may be stored: 8.4.1 at any time, to inspect them; and 8.4.2 after your right to use and sell them has ended, to remove them, using reasonable force if necessary.
8.5 Despite our retention of title to the Goods, we have the right to take legal proceedings to recover the price of Goods supplied should you not pay us by the due date.
8.6 You are not our agent. You have no authority to make any contract on our behalf or in our name.
9.1 Subject to clause 9.6 we warrant that the Goods: 9.1.1 conform in all material respects with their description on our acknowledgement of order form; and 9.1.2 are free from material defect at the time of delivery (provided that you comply with clause 9.3).
9.2 We give no other warranty (and exclude any warranty, term or condition that would otherwise be implied) as to the quality of the Goods or their fitness for any purpose and the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
9.3 If you believe that we have delivered Goods which are defective in materials or workmanship, you must: 9.3.1 inform us (in writing), with full details, as soon as possible; and 9.3.2 allow us to investigate (we may need access to your premises and product samples).
9.4 If the Goods are found to be defective in material or workmanship (following our investigations, and you have complied with those conditions in clause 9.3 in full, we will (at our option) replace the Goods or refund the price provided that we are not liable for defects discovered in worn or washed garments.
9.5 We are not liable for any other loss or damage (including indirect or consequential loss, financial loss, loss of profits or loss of use) arising from the Contract or the supply of Goods or their use, even if we are negligent.
9.6 We shall not be liable for the Goods' failure to comply with the warranty set out in clause 9.1 in any of the following events: (a) the Customer makes any further use of such Goods after giving notice in accordance with clause 9.3; (b) the defect arises because the Customer failed to follow our oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same; (c) the defect arises as a result of our following any drawing, design or Specification supplied by the Customer; (d) the Customer alters or repairs such Goods without our written consent; (e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or (f) the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements as detailed in clause 10.2.
9.7 These Conditions shall apply to any repaired or replacement Goods supplied by us.
9.8 Our total liability to you (from one single cause) for damage to property caused by our negligence is limited to £5,000,000.00.
9.9 For all other liabilities not referred to elsewhere in these Conditions our liability is limited in damages to the price of the Goods.
9.10 Nothing in these Conditions restricts or limits our liability for death or personal injury resulting from negligence or for any matter in respect of which it would be unlawful for us to exclude or restrict liability.
10. Samples and Specification
10.1 If we prepare the Goods in accordance with your Specifications or instructions: 10.1.1 you must ensure that the Specifications or instructions are accurate; 10.1.2 you must ensure that Goods prepared in accordance with those specifications or instructions will be fit for the purpose for which you intend to use them; and 10.1.3 you warrant that your Specifications or instructions will not result in the infringement of any rights of any third party or in the breach of any applicable law or regulation and you indemnify us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by us in connection with any claim made against us for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with our use of the Specification. This clause 10.1.3 shall survive termination of the Contract.
10.2 We reserve the right to make any changes in the specifications of our goods which are necessary to ensure they conform with any applicable safety or other statutory requirements.
10.3 We also reserve the right to make without notice any minor modifications in our specifications we think necessary or desirable.
10.4 If you have any intellectual property rights over the Goods, you agree that you will not enforce those rights in respect of Goods you order from us (even if the Order is cancelled) and you hereby grant us the right to resell these Goods without any liability to you in the circumstances stated at clause 5.11 or in the event that the Order is cancelled or the Contract terminated and you have not paid for the Goods.
10.5 Any samples, drawings, descriptive matter or advertising produced by Whispering Smith and any descriptions or illustrations contained in our catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
10.6 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 a device's display of the colours accurately reflects the colour of the products. Your product may vary slightly from those images.
11. Return of goods
11.1 We will accept the return of Goods from you only: 11.1.1 by prior arrangement (confirmed in writing); 11.1.2 on payment of an agreed handling charge (unless the Goods were defective when delivered); and 11.1.3 where the Goods are as fit for sale on their return as they were on delivery.
12. Resale of goods by you
12.1 You acknowledge that we have exclusive supply agreements in place with other wholesalers in Germany and Spain (“the Territory”) and that therefore you will only actively sell the Goods outside of the Territory.
12.2 You are entitled to sell the Goods to customers directly from your website (to the extent that you do not actively market the Goods in the Territory) however you are prohibited from offering any Goods for sale and/or having Goods offered for sale and from selling and/or having Goods sold to any customer who visits your website through a third party platform carrying the name or logo of a third party, for example, Amazon.
13. Export terms
13.1 Where the Goods are supplied by us to you by way of export from the United Kingdom this clause 13 of these Conditions applies (except to the extent that it is inconsistent with any written agreement between us).
13.2 The ‘Incoterms’ of the International Chamber of Commerce which are in force at the time when the Contract is made apply to exports, but these Conditions prevail to the extent that there is any inconsistency.
13.3 Unless otherwise agreed, the Goods are supplied ex works Manchester.
13.4 Where the Goods are to be sent by us to you by a route including sea transport we are under no obligation to give a notice under section 32(3) of the Sale of Goods Act 1979.
13.5 You are responsible for arranging testing and inspection of the Goods at our premises before shipment (unless otherwise agreed). We are not liable for any defect in the Goods which would be apparent on inspection unless a claim is made before shipment. We are not liable for any damage during transit.
13.6 We are not liable for death or personal injury arising from the use of the Goods delivered in the territory of another State (within the meaning of s.26 (3) (b) Unfair Contract Terms Act 1977).
13.7 You acknowledge that, your Order may be subject to import duties and taxes which are applied when the delivery reaches that destination. You will be responsible for payment of any such import duties and taxes. Please contact your local customs office for further information before placing your Order. You must comply with all applicable laws and regulations of the country for which the Goods are destined. We will not be liable or responsible if you break any such law.
14.1 If the Order is cancelled by you for any reason (other than pursuant to clause 5.2) you are required to pay us for all stock (finished or unfinished) that we may then hold (or to which we are committed) for the Order.
14.2 Without limiting our other rights or remedies we may suspend or cancel the Order, and terminate the Contract by written notice if: 14.2.1 you fail to pay us any money when due (under the Order or otherwise); 14.2.2 you become insolvent; 14.2.3 you fail to honour or are in material breach of your obligations under these Conditions.
14.3 You may not cancel the Order unless we agree in writing (and clauses 5.2.2 and 14.1 then apply).
14.4 On termination of the Contract for any reason the Customer shall immediately pay to Whispering Smith all of Whispering Smith’s outstanding unpaid invoices and interest.
14.5 Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
14.6 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.
15. Waiver and variations
15.1 Any waiver or variation of these Conditions is binding only where it is: 15.1.1 made (or recorded) in writing; and 15.1.2 signed on behalf of each party; and 15.1.3 expressly states an intention to waive and/or vary these Conditions.
15.2 All Orders that you place with us will be on these Conditions (or any that we may issue to replace them). By placing an Order with us, you are expressly waiving any right you might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
16. Force majeure Event
16.1 If we are unable to perform our obligations to you (or able to perform them only at unreasonable cost) because of circumstances beyond our control, we may cancel or suspend any of our obligations to you, without liability.
16.2 Examples of those circumstances include act of God, accident, explosion, war, terrorism, fire, flood, transport delays, strikes and other industrial disputes and difficulty in obtaining supplies.
16.3 If the period of delay or non-performance continues for 3 months, the Customer may terminate this Contract by giving two weeks written notice to Whispering Smith.
17.1 English law is applicable to any Contract made under these Conditions. The English courts have exclusive jurisdiction.
17.2 If you are more than one person, each of you has joint and several obligations under these Conditions.
17.3 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. 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.
17.4 We may treat you as insolvent if: 17.4.1 you are unable to pay your debts as they fall due; or 17.4.2 you (or any item of your property) become the subject of: a. any formal insolvency procedure (examples of which include receivership, liquidation, administration, voluntary arrangements (including a moratorium) or bankruptcy); b. any application or proposal for any formal insolvency procedure; or c. any application, procedure or proposal overseas with similar effect or purpose; or 17.4.3 your financial position deteriorates to such an extent that in our opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
17.5 Any notice by either of us which is to be served under these Conditions may be served by leaving it at or by delivering it to (by first class post or by fax) the other’s registered office or principal place of business. All such notices must be signed.
17.6 No Contract will create any right enforceable (by virtue of the Contracts (Rights of Third Parties) Act 1999) by any person not who is not a party to that Contract.
17.7 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement. The only statements upon which you may rely in making the Contract with us, are those made in writing by someone who is our authorised representative and either: 17.7.1 contained in our estimate (or any covering letter) and not withdrawn before the Contract is made; or 17.7.2 which expressly state that you may rely on them when entering into the Contract.
17.8 Nothing in these Conditions affects or limits our liability for fraudulent misrepresentation.
17.9 You agree that any personal data you provide to us can be passed to our credit insurer reference agencies and information providers, insurance companies, intermediaries and agents and they may keep a record of it and pass it to their customers. The personal data will be used for credit risk assessment and insurance and other related purposes and we may also receive personal data from sources other than you.
17.10 We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of our rights or obligations under the Contract. The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Whispering Smith.
18.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by clause 18.2.
18.2 Each party may disclose the other party's confidential information: a. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with these Conditions. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 18.2; and b. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. c. No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
19.1 All promotional discounts must be appiled prior to checking out in order for the discount to be deduced from the total order value. Only one discount code per order, per customer may be applied at any one time. Products in the 'Clearance Deals' section of the website are exempt from further discount and won't allow you to check out with these items in your basket whilst trying to apply a discount code. We reserve the right to reject, refund and cancel any orders that we deem not eligable for discount but has has a discount applied.
19.2 Free delivery is applied to orders over £400 (excluding VAT) and can be used in conjunction with one further discount code, where eligable.
19.3 You must registered and approved in order to take avantage of offers online. Online offers only apply to orders placed via our website www.whisperingsmith.com. All offers exclude items within our outlet / clearance section of the website, the discount will not be applied at checkout for these items. Limited stock available.