1.INTERPRETATION
1.1. Definitions:
“Business Day” a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“Conditions” the terms and conditions set out in this document as amended from time to time in accordance with clause 11.3.
“Contract” the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
“Customer” the person or firm who purchases the Goods from the Supplier.
“Delivery Location” has the meaning given in clause 4.2.
“Force Majeure Event” an event, circumstance or cause beyond a party’s reasonable control.
“Goods” the goods (or any part of them) set out in the Order.
“Order” the Customer’s order for the Goods, as placed by the Customer by telephone or online, as set out in the Customer’s purchase order form, the Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be.
“Specification” any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
“Supplier” CUSTOM BRAND CO LIMITED. (registered in England and Wales with company number 14807823).
1.2. Interpretation
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not
having separate legal personality).
1.2.2 A reference to a party includes its successors and permitted assigns.
1.2.3 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.4 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.
1.2.5 A reference to writing or written includes email.
2.0. 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 law, trade custom, practice or course of dealing.
2.2 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 are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier (or, where applicable, its authorised agent) issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Customer waives any right it 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.
2.5 Any samples, drawings, or advertising produced by the Supplier and any illustrations contained in the Supplier’s 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.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
2.7 Once the order has been accepted by the supplier in accordance with clause 2.3, the customer may not cancel or amend the order without the supplier’s prior written consent. If the supplier agrees to the cancellation of an order, the customer shall indemnify the supplier against all costs incurred by the supplier as a result of the cancellation, including but not limited to:
2.7.1 The cost of materials purchased for the committed order.
2.7.2 Labour and production costs incurred.
2.7.3 Artwork design and set-up costs.
3.0. GOODS
3.1 The Goods are as set out in the Supplier’s catalogue or artwork supplied to the Customer, subject to slight differences in colour and style as a result of the manufacturing process and as modified by any applicable Specification.
3.4.2 Where the Customer provides artwork, trademarks, logos, designs, specifications or other materials (“Customer Materials”) to the Supplier for the purpose of manufacturing the Goods, the Customer:
3.4.2.1 warrants that it owns or has obtained all necessary licences, permissions and rights to use the Customer Materials; and
3.4.2.2 grants the Supplier a non-exclusive, royalty-free licence to use the Customer Materials solely for the purpose of fulfilling the Order.
3.4.3 Intellectual Property Indemnity. The Customer shall indemnify and keep indemnified the Supplier against all liabilities, claims, costs, damages and expenses (including legal costs) arising out of or in connection with any claim that the manufacture, use or supply of the Goods in accordance with the Customer Materials infringes the intellectual property rights of any third party.
3.4.4 Artwork Approval. Where the Supplier prepares artwork, mock-ups or proofs for the Customer’s approval, the Customer shall be responsible for reviewing and approving such materials before production begins. The Supplier shall not be liable for any errors, omissions or defects in the Goods where the Customer has approved the relevant artwork or proof.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier 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 reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the specification of the Goods, or any agreed Specification, if required by any applicable statutory or regulatory requirements.
3.4 Intellectual Property Rights.
3.4.1 Supplier Intellectual Property. All intellectual property rights, including but not limited to copyrights, design rights, trademarks, trade names, know-how, technical information, drawings, artwork, templates, concepts and designs created or supplied by the Supplier in connection with the Goods shall remain the exclusive property of the Supplier unless expressly agreed otherwise in writing. The Customer shall not reproduce, modify, distribute or otherwise use such intellectual property without the prior written consent of the Supplier.
3.5 Point of Sale Materials
3.5.1 Ownership. Any point of sale materials supplied by the Supplier to the Customer, whether provided free of charge or otherwise, including but not limited to display stands, counter display units (CDUs), floor standing display units (FSDUs), merchandising units, display fixtures, promotional stands or similar materials (“POS Materials”), shall at all times remain the property of Custom Brand Co Limited.
3.5.2 Permitted Use. The Customer shall use the POS Materials solely for the purpose of promoting, displaying or selling the Goods supplied by the Supplier and shall not use the POS Materials for any other products or for any other commercial purpose without the Supplier’s prior written consent.
3.5.3 Care and Maintenance. The Customer shall take reasonable care of the POS Materials and keep them in good condition (fair wear and tear excepted). The Customer shall not modify, remove branding from, or otherwise alter the POS Materials without the Supplier’s prior written consent.
3.5.4 Return of POS Materials. The Supplier may at any time request the return of any POS Materials. The
Customer shall, at its own cost, promptly return such POS Materials to the Supplier in good condition (fair wear and tear excepted).
3.5.5 Loss or Damage. If any POS Materials are lost, damaged beyond reasonable wear and tear, or not returned upon request, the Supplier reserves the right to charge the Customer the replacement cost of such POS Materials.
4.0. DELIVERY
4.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.2 Either:
4.2.1 the Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready; or
4.2.2 where the Supplier agrees that the Customer may collect the Goods, the Customer shall collect the Goods from the Supplier's premises or such other location as may be advised by the Supplier prior to delivery (Delivery Location) within three Business Days of the Supplier notifying the Customer that the Goods are ready.
4.3 Delivery is completed:
4.3.1 when the Supplier is delivering Goods to the Customer pursuant to clause 4.2.1: on the completion of unloading of the Goods at the Delivery Location; or
4.3.2 when the Customer is collecting Goods pursuant to clause 4.2.2: on the completion of loading of the Goods at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier 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 the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Supplier fails to deliver the Goods on any date quoted for delivery it shall use its reasonable endeavours to deliver Goods promptly thereafter. Notwithstanding this, if the Supplier is unable to supply the Goods for whatever reason it reserves the right to cancel the Customer’s Order and its liability to the Customer shall be limited to refunding any pre-payments made by the Customer for the Goods at the time of cancellation. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to accept delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
4.6.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
4.6.2 the Supplier shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
4.7 If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted actual delivery of them, the Supplier 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.
4.8 The Supplier, by agreement, may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.0. QUALITY
5.1 The Supplier warrants that on delivery, the Goods shall:
5.1.1 conform in all material respects with their description and any applicable Specification; and
5.1.2 be free from material defects in design, material and workmanship; and
5.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
5.1.4 be fit for any purpose held out by the Supplier.
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing within 72 hours of delivery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business,
5.2.4 the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause
5.1 in any of the following events:
5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow the Supplier’s 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;
5.3.3 the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
5.3.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.3.6 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 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.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6.0. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
6.2.1 the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
6.2.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.1.2 to clause 9.1.4; and
6.3.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
6.4.1 it does so as principal and not as the Supplier’s agent; and
6.4.2 title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.1.2 to clause 9.1.4, then, without limiting any other right or remedy the Supplier may have:
6.5.1 the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
6.5.2 the Supplier may at any time:
6.5.2.1 require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
6.5.2.2 if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7.0. PRICE AND PAYMENT
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the Supplier’s standard price as notified by the Supplier to the Customer.
7.2 The Supplier may, by giving notice to the Customer at any time up to 3 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
7.2.1 any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3 The price of the Goods 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.
7.4 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
7.5 The Customer shall pay each invoice submitted by the Supplier:
7.5.1 within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
7.5.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
7.6 f the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 9 (Termination), the Customer shall 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 7 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%.
7.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8.0. LIMITATION OF LIABILITY
8.1 The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
death or personal injury caused by negligence;
fraud or fraudulent misrepresentation;
breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
defective products under the Consumer Protection Act 1987.
8.3 Subject to clause 8.2, the Supplier’s total liability to the Customer shall not exceed the greater of:
the total aggregate price of the Goods in the relevant Order; or
£10,000.
8.4 Subject to clause 8.2, the following types of loss are wholly excluded:
8.5 This clause 8 shall survive termination of the Contract.
9.0. TERMINATION
9.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
the Customer commits a material breach of any term of the Contract 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;
in the Supplier’s reasonable opinion the Customer may imminently take or have taken 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), be wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), have a receiver appointed to any of its assets or cease 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.
9.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.1, 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 Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
9.5 Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
10.0. FORCE MAJEURE
10.1 Neither Party will be liable to the other for any failure to punctually and regularly perform or fulfil its respective obligations hereunder caused by a Force Majeure
Event, provided that the Party becoming unable to perform its obligations will promptly notify the other in writing upon the occurrence of the Force Majeure Event, expressly indicating the foreseeable consequences thereof.
10.2 Should a Force Majeure Event prevent any of the Parties from due performance hereunder, the relevant obligations will be reasonably postponed in time so as to allow the Party in default to perform and therefore to ensure the continuity of the Agreement, provided that such late performance does not distort or impair the rights and interests of the Parties.
10.3 Both Parties will use reasonable endeavours to obviate or remove the Force Majeure Event to the largest possible extent and in the shortest period of time and undertake to cooperate in good faith in order to find alternative ways of overcoming the circumstances giving rise to the Force Majeure Event so that performance hereunder be affected to the minimum possible extent.
10.4 A Force Majeure Event will not excuse the Parties from due and punctual performance of such of their respective obligations hereunder as may remain unaffected by the Force Majeure Event.
10.5 Should the Force Majeure Event persist during a period exceeding 24 (twenty-four) weeks, then the Party not affected by the Force Majeure Event will be entitled to terminate this Agreement by written notice to the other.
11.0. GENERAL
11.1 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement.
11.2 Relationship between the Parties. This Agreement shall not be deemed to create any employer-employee, or any agency, franchise, partnership or joint venture relationship between the Parties or any legal relationship of any kind that would impose liability upon one Party for the act or failure of the other Party. Save where expressly stated in this Agreement, neither Party shall have authority to make representations, act in the name of or on behalf of or otherwise legally bind the other Party.
11.3 No Waiver, Cumulative Remedies. No failure to exercise and no delay in exercising any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege under this Agreement preclude any other or further exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges provided under this Agreement are cumulative and not exhaustive or in lieu of any rights, remedies, powers and privileges provided by law.
11.4 Representations. Each Party represents and warrants that it has full power and authority to execute deliver and perform its obligations under this Agreement
11.5 Severability. If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect it shall not affect or impair the legality, validity or enforceability of any other provision of this Agreement; and the Parties will use reasonable endeavours to negotiate in good faith with a view to replacing it with a valid and enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the illegal, invalid or unenforceable provision but differing from the replaced provision as little as possible. If any illegal, invalid or unenforceable provision would be legal, valid or enforceable if some part of it were deleted, such provision shall apply with the minimum modification(s) necessary to make it legal, valid or enforceable. If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any relevant jurisdiction, that shall not affect or impair the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this Agreement.
12.0. NOTICES
12.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case) or sent by email to the relevant address noted in the Order and the Supplier’s written acceptance of the Order.
12.2 Any notice shall be deemed to have been received:
if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
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 or at the time recorded by the delivery service; and
if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 12.2, business hours means 9.00am to 5.30pm Monday to Friday on a day that is not a public holiday in the place of receipt.
12.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
13.0. THIRD PARTY RIGHTS
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
14.0. GOVERNING LAW AND JURISDICTION
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
CUSTOM BRAND CO LTD
The Old Post Office, 41-43 Market Place, Chippenham, Wiltshire, England, SN15 3HR
Company No: 14807823