These terms and conditions shall apply to all contracts for the sale of goods
(Products) between us. No terms or conditions endorsed on, delivered with
or contained in your purchase order, confirmation of order, specification or
other document shall form part of these terms and conditions simply as a
result of such document being referred to in these terms and conditions.
Any variation to these conditions and any representations about the Products
shall have no effect unless expressly agreed in writing and signed by us. You
acknowledge that you have not relied on any statement, promise or
representation made or given by us or on our behalf which is not set out in
these terms and conditions.
Each order or acceptance of a quotation for Products sent by you to us shall
be deemed to be an offer by you to buy Products subject to these conditions.
No order placed by you shall be deemed to be accepted by us until a written
acknowledgement of order is issued by us or (if earlier) we deliver the
Products to you.
You will not be entitled to cancel or amend an order once communicated to
us. Where, in our sole discretion, we agree to amend or cancel your order,
you hereby agree to indemnify our costs, liabilities or expenses incurred in
relation to any cancelled Products including but not limited to, where relevant,
the costs of re-carding or otherwise amending the Products or the packaging
for the purpose of resale.
You shall ensure that the terms of your order and any applicable specification
are complete and accurate.
The quantity and description of the Products shall be as set out in our
quotation, acknowledgement of order, or packaging note. Where you have
requested generic product descriptions (e.g. scrunchies, hair clips) you
thereby give your consent for us to provide such Products matching the
generic description as we from time to time determine.
All samples, drawings, descriptive matter, specifications and advertising
issued by us and any descriptions or illustrations contained in our catalogues
or brochures are issued or published for the sole purpose of giving an
approximate idea of the Products described in them. They shall not constitute
an offer to you nor shall they form part of these terms and conditions and
unless we arrange for the manufacture of specific Products on your behalf
and provide samples (whether actual or photographic) this is not a sale by
sample.
Where we are to supply Products to specific packaging designs supplied by
you, you shall deliver to us all the necessary information (including details of
any design or plan) in sufficient time to enable us to supply the Products by
any dates estimated for delivery of the Products and you shall indemnify us
against all losses, expenses, damages and costs incurred by us as a result of
our use of any design or plan supplied by you including (but not limited to)
those incurred by us in respect of any claim by a third party for infringement of
any patent, copyright, design, trademark or other industrial or intellectual
property right or for negligence, whether in respect of personal injury or death
or otherwise. Risk of damage to or loss of any documentation or other items
relating to any specification, design or plan supplied by you shall be yours
even if in our possession.
The Products may incorporate and represent material and valuable copyright,
know-how, goodwill and other intellectual property rights owned by us (“IPR”).
You acknowledge that you have no rights in respect of the IPR.
Unless otherwise agreed by us in writing, the price for the Products (Price)
shall be the price set out in our price list at the time of delivery.
The Price shall be exclusive of any value added tax and all costs or charges
in relation to the Products including (but not limited to) any cross border
taxes, import duties or customer charges. You will be responsible for all such
charges.
We shall be entitled to invoice for the Products at any time following delivery
and where credit terms are given payment of the Price is due in full (i.e.
without any setoff) in pounds sterling and in cleared funds within 30 days.
Time for payment shall be of the essence.
Where we accept in our sole discretion return of a merchandised stand
attaching Products returned in the same condition as the Products were sent
to you we shall notify you of the number and value of Products returned to us
within a reasonable period from our receipt of that stand. The number and
value of returns confirmed by us to you shall be conclusive in the absence of
you providing conclusive evidence to the contrary.
Credit notes provided in respect of merchandised stand returns will be limited
to the price of 400 Products per stand and may only be set off against
payments due to us where specifically set out in our invoice and statement
provided to you. Credit notes will also include any costs we have to incur in
repairing, repackaging or re-pricing the Products.
Unless otherwise agreed in writing by us, delivery of the Products shall take
place at our place of business. In such circumstances you shall take delivery
of the Products within 3 days of us giving you notice that the Products are
ready for delivery. In certain circumstances and subject to our minimum order
levels from time to time (which vary according to country of destination) we
may be prepared to deliver to other addresses subject to our delivery policy
from time to time in force which may include delivery charges payable by you.
This is subject to our sole discretion.
Any dates specified by us for delivery of the Products are intended to be an
estimate and time for delivery shall not be made of the essence by notice. If
no dates are so specified, delivery shall be within a reasonable time.
Subject to the other provisions of these conditions we shall not be liable for
any direct, indirect or consequential loss (all three of which terms include,
without limitation, pure economic loss, loss of profits, loss of business,
depletion of goodwill and similar loss), costs, damages, charges or expenses
caused directly or indirectly by any delay in the delivery of the Products (even
if caused by our negligence), nor shall any delay entitle you to terminate or
rescind any order unless such delay exceeds 90 days.
If for any reason you fail to accept delivery of any of the Products when they
are ready for delivery, or we are unable to deliver the Products on time
because you have not provided appropriate instructions, documents, licences
or authorisations, risk in the Products shall pass to you (including for loss or
damage caused by our negligence), the Products shall be deemed to have
been delivered and we may store the Products until delivery, whereupon you
shall be liable for all related costs and expenses (including, without limitation,
storage and insurance).
If we deliver to you a quantity of Products of up to 10% more or less than the
quantity ordered, you shall not be entitled to object to or reject the Products or
any of them by reason of the surplus or shortfall and shall pay for such
Products at the pro rata rate. This shall represent our entire liability to you.
We may deliver the Products by separate instalments. Each separate
instalment shall be invoiced and paid for in accordance with the provisions of
these terms and conditions. Each instalment shall be a separate contract and
no cancellation or termination of any one contract relating to an instalment
shall entitle you to repudiate or cancel any other contract or instalment.
The quantity of any consignment of Products as recorded by us on despatch
from our place of business shall be conclusive evidence of the quantity
received by you on delivery unless you can provide conclusive evidence
proving the contrary.
We shall not be liable for any non-delivery of Products (even if caused by our
negligence) unless you give written notice to us of the non-delivery within 2
days of the date when the Products would in the ordinary course of events
have been received.
Our liability for non-delivery of the Products shall be limited to replacing the
Products within a reasonable time or issuing a credit note at the pro rata
contract rate against any invoice raised for such Products.
The Products are at your risk from the time of delivery but ownership of the
Products shall not pass to you until we have received in full (in cash or
cleared funds) all sums due to us in respect of the Products and all other
sums which are or which become due from you to us on any account.
Until ownership of the Products has passed to you, you shall hold the
Products on a fiduciary basis as our bailee, store the Products separately
from all other goods in such a way that they remain readily identifiable as our
property, not destroy, deface or obscure any identifying mark or packaging on
or relating to the Products and maintain the Products in satisfactory condition
and keep them insured on our behalf for their full price against all risks to our
reasonable satisfaction. On request you shall produce the policy of insurance
to us.
You may resell the Products before ownership has passed to you provided
that any sale shall be effected in the ordinary course of your business at full
market value and any such sale shall be a sale of our property on your own
behalf and you shall deal as principal when making such a sale.
Your right to possession of the Products shall terminate and we shall be
entitled immediately to recover the Products if:
(a) you have a bankruptcy order made against you or you make an
arrangement or composition with your creditors, or otherwise take
the benefit of any statutory provision for the time being in force for
the relief of insolvent debtors, or convene a meeting of creditors, or
enter into liquidation, or have a receiver and/or manager,
administrator or administrative receiver appointed of your
undertaking or any part thereof, or documents are filed with the court
for the appointment of an administrator or notice of intention to
appoint an administrator is given by you or your directors or by a
qualifying floating charge holder, or a resolution is passed or a
petition presented to any court for your winding-up or for the granting
of an administration order, or any proceedings are commenced
relating to your actual or possible insolvency; or
(b) you are unable to pay your debts within the meaning of section 123
of the Insolvency Act 1986 or you cease to trade; or
(c) you encumber or in any way charge any of the Products; or
(d) you do not pay the Price to us in accordance with condition 12.
We shall be entitled to recover payment for the Products notwithstanding that
ownership of any of the Products has not passed to you.
29 You hereby grant us, our agents and employees an irrevocable licence at any
time to enter any premises where the Products are or may be stored in order
to inspect them, or, where your right to possession has terminated, to recover
them.
Where we are unable to determine whether any Products are the goods in
respect of which your right to possession has terminated, you shall be
deemed to have sold all goods of the kind sold by us to you in the order in
which they were invoiced to you.
On termination of any contract, howsoever caused, our rights contained in
conditions 24 to 32 shall remain in effect.
For the avoidance of doubt merchandised stands shall at all times remain our
property and we may recover our stands at any time. Failure to return such
stands to us may result in us claiming from you our costs of replacement. Title
to such stands is not included in the Price.
If you fail to pay us the Price or any sum due then in addition to our other
rights we may bring a claim for the Price and/or cancel any agreement
between us and/or suspend any other deliveries to you and/or claim interest
under the Late Payment of Commercial Debts (Interest) Act 1998.
Provided that the total Price has been paid in full and in cleared funds on or
before the due date for payment, we guarantee the Products against defects
in materials and workmanship to the extent only that the Products or any
component in them are the subject of a guarantee or warranty from their
manufacturer and to the extent we can enforce such guarantee or warranty
against that manufacturer. No other warranty, guarantee or other term relating
to the supply and manufacture of the Products is given and if implied by
statute, common law or otherwise is excluded to the fullest extent permitted
by law.
Any claim made by you in respect of any guarantee given under condition
must be notified to us within 7 days of the date of delivery or if any relevant
defect or failure would not have been apparent on reasonable inspection of
the Products, within 7 days after discovery of that defect or failure. If you fail
to comply with the provisions of this condition we shall have no liability to you
in respect of the relevant defect or failure under the terms of any guarantee.
In the event of a valid claim under the guarantee, we shall be entitled to
repair, replace or refund the Products in question (but not other Products
delivered as part of the same order) in our sole discretion. We reserve the
right to issue a partial refund in the event that Products are not returned to us
in the same condition as they were delivered to you.
Except in respect of death or personal injury caused by our negligence we
shall not be liable to you by reason of any representation (unless fraudulent)
or any implied warranty, condition or other term or any duty at common law or
under these terms and conditions for any liquidated damages or penalty you
incur as a result of any agreement with a third party for the supply of the
Products supplied by us to you or for any loss of profit or any indirect or
consequential loss, damage, costs or expenses which arise out of or in
connection with the supply of Products by us to you.
Except in respect of death or personal injury our entire liability in respect of
the agreement between us shall not exceed the amount of the Price payable
by you in respect of the Products.
We shall be under no liability in respect of any defect or failure in the Products
we provide which arises from any drawing, design, specification or materials
which have been supplied to us by you.
We may assign all or any of our rights under these terms and conditions or
any part of them to any person, firm or company. You shall not be entitled to
assign your rights under these terms and conditions without our prior written
consent.
We reserve the right to defer the date of delivery or to cancel or vary any
order (without liability to you) if we are prevented from or delayed in the
carrying on of our business due to circumstances beyond our reasonable
control including, without limitation, acts of God, governmental actions, war or
national emergency, acts of terrorism, protests, riot, civil commotion, fire,
explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether
or not relating to either party's workforce), or restraints or delays affecting
carriers or inability or delay in obtaining supplies of adequate or suitable
materials.
Each of our rights or remedies under these terms and conditions is without
prejudice to any other right or remedy we may have whether under these
terms and conditions or otherwise.
If any provision of these terms and conditions is found by any court, tribunal
or administrative body of competent jurisdiction to be wholly or partly illegal,
invalid, void, voidable, unenforceable or unreasonable it shall to the extent of
such illegality, invalidity, voidness, voidability, unenforceability or
unreasonableness be deemed severable and the remaining provisions of
these terms and conditions and the remainder of such provision shall
continue in full force and effect.
Failure or delay by us in enforcing or partially enforcing any provision of these
terms and conditions shall not be construed as a waiver of any of our rights
under these terms and conditions.
Any waiver by us of any breach of, or any default under, any provision of
these terms and conditions by you shall not be deemed a waiver of any
subsequent breach or default and shall in no way affect the other terms of
these terms and conditions.
No provision of these terms and conditions shall be enforceable by virtue of
the Contracts (Rights of Third Parties) Act 1999 by any person that is not a
party to them.
These terms and conditions and any dispute or claim arising out of or in
connection with them or their subject matter or formation (including noncontractual
disputes or claims) shall be governed by and construed in
accordance with English law, and the parties submit to the exclusive
jurisdiction of the English courts.
