Terms and Conditions
Agreed terms
1. Interpretation
The following definitions and rules of interpretation in this clause apply in this agreement.
1.1 Definitions:
Affected Party: has the meaning given in clause 15.2.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date: the date of this agreement.
Confidential Information: has the meaning given in clause 12.1.
Delivery: completion of delivery of an Order in accordance with clause 5.2 or clause 5.4(a).
Delivery Date: the date specified for delivery of an Order in accordance with clause 3.4.
Delivery Location: the location specified for delivery of Products specified in an Order in accordance with clause 3.4 and clause 5.1.
Force Majeure Event: has the meaning given in clause 15.1.
month: a calendar month.
Order: an order for Products submitted by the Customer in accordance with clause 3.
Order Number: the reference number to be applied to an Order by the Supplier in accordance with clause 3.5.
Payment Credit Terms: the payment credit terms as agreed between the Supplier and the Customer relating to the payment of invoices for Products supplied under this agreement, a copy of which is appended to this agreement.
Product Prices: the prices of the Products as determined in accordance with clause 8.1 and Product Price means the price of an individual Product as determined in accordance with that clause.
Products: the products set out in Schedule 1 and, where the context requires, the Products ordered by and supplied to the Customer.
Representatives: has the meaning given in clause 12.2.
Specification: the specification of the Products set out in Schedule 2.
Term: the term of the agreement, as determined in accordance with clause 13.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement and any reference to this agreement includes the Schedules.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to any party shall include that party's personal representatives, successors and permitted assigns.
1.8 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.9 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.10 A reference to writing or written includes fax and email.
1.11 Any obligation in this agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.
1.12 A reference to this agreement or to any other agreement or document referred to in this agreement is a reference to this agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.
1.13 References to clauses and Schedules are to the clauses and Schedules of this agreement; and references to paragraphs are to paragraphs of the relevant Schedule.
1.14 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Supply of the products
2.1 During the Term and subject always to clause 3.2, the Supplier shall supply and the Customer shall purchase such quantities of Products as the Customer may order under clause 3 in accordance with the terms and conditions of this agreement.
2.2 The Supplier may at its discretion supply to the Customer with promotional display stands relating to the Products for the Customer to use at its premises. The Supplier may request the return of such promotional display stands at any time and the Customer shall return the same upon receipt of such a request.
3. Orders
3.1 The Customer may give the Supplier its Order at any time during the Term.
3.2 Each Order shall be deemed to be a separate offer by the Customer to purchase Products on the terms of this agreement, which the Supplier shall be free to accept or decline at its absolute discretion.
3.3 No Order shall be deemed to be accepted by the Supplier until it issues an Order Number or the Supplier notifies the Customer in writing that the Order is accepted.
3.4 Each Order shall:
(a) be given in writing, using an online portal
(b) specify the type and quantity of products ordered;
(c) specify the recipient details, delivery location and contact details for courier communication
(d) requested delivery date if outside of our normal delivery timescales
3.5 The Supplier shall assign an Order Number to each Order it accepts and notify such Order Numbers to the Customer together with the date on which the Order will be delivered to the Delivery Location (Delivery Date). Each party shall use the relevant Order Number in all subsequent correspondence relating to the Order.
4. Manufacture, quality and packing
4.1 Subject always to clause 4.2, the Products supplied to the Customer by the Supplier under this agreement shall:
(a) conform to the Specification;
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier;
(c) be free from defects in design, material; and
(d) comply with all applicable statutory and regulatory requirements.
The Supplier will warrant each Product in accordance with the After Sales Policy.
4.2 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 (as amended) are, to the fullest extent permitted by law, excluded from this agreement.
Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Products referred to in them. They shall not form part of the agreement nor have any contractual force.
The Supplier reserves the right to amend the Specification from time to time if required by any applicable statutory or regulatory requirements.
5. Delivery
5.1 Unless otherwise agreed between the parties and subject to clause 5.3, the Supplier shall deliver the Products to the location set out in the Order or such other location as the parties may agree (Delivery Location) on the Delivery Date.
5.2 Delivery is completed on the completion of unloading of the Products at the Delivery Location.
Any dates quoted for delivery (including without limitation the Delivery Date) are approximate only, and the time of delivery is not of the essence. Delays in the delivery of an Order shall not entitle the Customer to:
(a) refuse to take delivery of the Order; or
(b) claim damages; or
(c) terminate this agreement.
The Supplier shall have no liability for any failure or delay in delivering an Order to the extent that such failure or delay is caused by the Customer's failure to comply with its obligations under this agreement.
5.3 If the Customer fails to take delivery of an Order on the Delivery Date (or on any alternative date agreed between the Supplier and the Customer), then, except where such failure or delay is caused by the Supplier's failure to comply with its obligations under this agreement:
(a) delivery of the Order shall be deemed to have been completed at 9.00 am on the Delivery Date (or on the alternative date agreed between the Supplier and Customer); and
(b) the Supplier shall store the Order until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
5.4 Each Order shall be accompanied by a delivery note from the Supplier showing the Order Number, the date of the Order, the type and quantity of Products included in the Order.
6. Acceptance and defective products
6.1 The Product shall be accepted upon Delivery on the Product.
6.2 Following acceptance of the Product in accordance with clause 6.1, the Warranty Procedure shall apply in relation to defective Products.
6.3 In the event where the Customer sells on the Products to its own customers, the Customer shall provide such customers with a warranty on the Products on the same terms as the warranty as set out in the After Sales Policy.
7. Title and risk
7.1 Risk in Products shall pass to the Customer on Delivery.
7.2 Title to Products shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for such Products.
7.3 Until title to Products has passed to the Customer, the Customer shall (as applicable):
(a) store such Products separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to such Products; and
(c) maintain such Products in satisfactory condition and keep them insured on the Supplier's behalf for their full price against all risks with an insurer that is reasonably acceptable to the Supplier.
7.4 If before title to Products passes to the Customer the Customer becomes subject to any of the events listed in clause 14.2 or clause 14.4, inclusive, then, without limiting any other right or remedy the Supplier may have:
(a) the Supplier may at any time:
(i) require the Customer to deliver up all Products in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the relevant Products are stored in order to recover them.
8. Product prices
The price of the Products shall be the price set out in the Supplier's published price list in force as at the date the Order is placed. Such price shall be set out in the Order.
The Supplier may, by giving [10] Business Days notice to the Customer at any time change the prices as set out in the Supplier's published price list.
The price of the Products:
excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
excludes the costs and charges of packaging and transport of the Products, which may be invoiced to the Customer in line with the Supplier’s price list.
9. Terms of payment
9.1 The Supplier shall pay for the Products in accordance with the payment terms as set out in Schedule 4.
9.2 If a party fails to make any payment due to the other under this agreement by the due date for payment, then, without limiting the other party's remedies under clause 14.4, the defaulting party shall pay interest on the overdue amount at the rate of [4]% per annum above Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount. In relation to payments disputed in good faith, interest under this clause is payable only after the dispute is resolved, on sums found or agreed to be due, from the due date until payment.
The Customer shall pay all amounts due under the agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
10. Limitation of liability
10.1 Nothing in this agreement shall limit or exclude the liability of either party for:
(a) death or personal injury resulting from negligence; or
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (as amended); or
(d) breach of section 2 of the Consumer Protection Act 1987 (as amended); or
any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
10.2 Without prejudice to clause 10.1, the Supplier shall not under any circumstances whatever be liable to the Customer, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any:
(a) loss of profit; or
(b) loss of goodwill; or
(c) loss of business; or
(d) loss of business opportunity; or
(e) loss of anticipated saving; or
(f) special, indirect or consequential damage
suffered by the Customer that arises under or in connection with this agreement.
10.3 Without prejudice to clause 10.1 or clause 10.2, the Supplier's total liability arising under or in connection with this agreement, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall in all circumstances be limited to the Product Price paid for the Product to which the liability relates.
11. Assignment and other dealings
11.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the agreement.
11.2 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 agreement without the prior written consent of the Supplier.
12. Confidentiality
12.1 Each party undertakes that it shall not at any time during this agreement and for a period of [five] years after termination disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of its Group, including but not limited to information relating to a party's operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers (Confidential Information), except as permitted by clause 12.2.
12.2 Each party may disclose the other party's Confidential Information:
(a) to its employees, officers, agents, consultants or subcontractors (Representatives) who need to know such information for the purposes of carrying out the party's obligations under this agreement, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 12 as though they were a party to this agreement. The disclosing party shall be responsible for its Representatives' compliance with the confidentiality obligations set out in this clause; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this agreement are granted to the other party or to be implied from this agreement. In particular, no licence is hereby granted directly or indirectly under any patent, invention, discovery, copyright or other intellectual property right held, made, obtained or licensable by either party now or in the future.
13. Commencement and term
This agreement shall commence on the Commencement Date and shall continue, until terminated in accordance with clause 14(Term).
14. Termination and suspension
14.1 Without affecting any other right or remedy available to it, either party may terminate this agreement on giving not less than [30] days written notice to the other party.
14.2 Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving written notice to the Customer if:
the Customer commits a material breach of any term of the agreement and (if such a breach is remediable) fails to remedy that breach within [14] days of that party being notified in writing to do so;
the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), 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 its 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;
the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
Without limiting its other rights or remedies, the Supplier may suspend provision of the Products under the agreement if the Customer becomes subject to any of the events listed in clause 14.2(a) to clause 14.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this agreement on the due date for payment.
Without limiting its other rights or remedies, the Supplier may terminate the agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the agreement on the due date for payment.
On termination of the agreement for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest.
On termination of this agreement each party shall promptly:
(a) return to the other party all equipment, materials and property belonging to the other party that the other party had supplied to it in connection with the supply and purchase of the Products under this agreement (including without limitation any promotional display stands relating to the Products provided by the Supplier to the Customer in accordance with clause 2.2);
(b) return to the other party all documents and materials (and any copies) containing the other party's Confidential Information;
(c) erase all the other party's Confidential Information from its computer systems (to the extent possible); and
(d) on request, certify in writing to the other party that it has complied with the requirements of this clause.
Termination of the agreement 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 agreement that existed at or before the date of termination.
Any provision of the agreement 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.
14.3 On termination of this agreement the following clauses shall continue in force:
(a) Clause 10 (Limitation of liability);
(b) Clause 11 (Confidentiality);
(c) Clause 14 (Termination);
(d) Clause 24 (Governing law and Jurisdiction).
15. Force majeure
15.1 Force Majeure Event means any circumstance not within a party's reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(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 or sonic boom;
(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) collapse of buildings, fire, explosion or accident;
(g) any labour or trade dispute, strikes, industrial action or lockouts;
(h) non-performance by suppliers or subcontractors; and
(i) interruption or failure of utility service.
15.2 Provided it has complied with clause 15.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
15.3 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
15.4 If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than [4] weeks, the Affected Party may terminate this agreement by giving [2] weeks' written notice to the unaffected party.
16. Severance
16.1 If any provision or part-provision of this agreement 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 this agreement.
16.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
17. Further assurance
At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this agreement.
18. Variation
No variation of this agreement shall be effective unless it is in writing and signed by both parties (or their authorised representatives).
19. Waiver
19.1 A waiver of any right or remedy under this agreement or by law shall only be effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
19.2 A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
20. Notices
20.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or fax or email.
20.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 20.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
20.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
21. Entire agreement
21.1 This agreement 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.
21.2 Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
21.4 Nothing in this clause shall limit or exclude any liability for fraud.
22. Third party rights
A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. This does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
23. Counterparts
This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
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