ENGLISH EASTON LIMITED PHOEBE ENGLISH STANDARD TERMS AND CONDITIONS OF SALE
1 Definitions and Headings In this agreement: (i) "Buyer" shall mean the person(s) or legal entity purchasing fashion items ("Goods") from the Seller (ii) “Contract” shall mean the contract between Buyer and Seller for the sale and purchase of the Goods in accordance with the written order confirmation and these terms and conditions, and (iii) "Seller" shall mean English Easton Limited t/a Phoebe English. The clause and paragraph headings are included for convenience only and shall not affect the interpretation of this agreement.
2 Applicable Terms and Conditions Only these terms and conditions shall apply to the purchase of the Goods to the exclusion of any other terms that the Buyer seeks to impose or incorporate and any other term implied by law, custom or usage shall also be excluded except where such exclusion is prohibited by law. No other terms presented by Buyer to Seller (in a purchase order or otherwise) shall form part of the contract between the parties.
3 Order Process
3.1 Submission of Order Buyer shall submit a purchase order to Seller. Purchase orders shall only be
valid if sent by mail or by fax to the Seller’s address.
3.2 Acceptance of Order Once Seller has received the purchase order, Seller may issue a written order
confirmation for the purchase of the Goods. Buyer shall sign and return the written order confirmation to Seller. Buyer’s return of a signed order confirmation shall be an offer by Buyer to purchase the Goods from Seller on these terms and conditions. The order confirmation shall only be deemed to be accepted when Seller confirms acceptance to Buyer. Once Seller confirms acceptance, the Contract shall come into existence. Seller may at its absolute discretion give notice of non-acceptance of any purchase order within 30 days of receipt.
3.3 Irrevocability of Order The Buyer's order shall become irrevocable on the part of Buyer on the date Buyer signs Seller’s order confirmation.
3.4 Accuracy of Order The order confirmation shall set out the complete list of Goods ordered by Buyer. Buyer shall check and ensure that it contains the correct number and type of Goods. Buyer shall notify Seller within 3 working days of receipt of such confirmation of any discrepancies and Seller will re-issue a corrected order confirmation to Buyer but shall not correct any discrepancies or accept changes to the order thereafter.
3.5 Place of Resale The Goods supplied by Seller shall not be resold by Buyer in any location (including online) other than the customer address indicated on the order confirmation, unless Seller has previously authorised such location in writing. Buyer shall only be entitled to sell the Goods in the ordinary course of its business and is not allowed to sell on the Goods to further retailers or wholesalers.
4.1 Deposit Buyer shall pay a deposit of 30% of the value of each order within 7 working days of the date
of Seller’s order confirmation (unless agreed otherwise in writing by Seller and evidenced in the "Payment Terms" set out in the order confirmation). The balance shall be paid in full within 7 working days of the date of a sales invoice, and in any event prior to Seller releasing the Goods (unless agreed otherwise in writing by Seller and evidenced in the “Payment Terms” set out in the order confirmation). Time of payment is of the essence.
4.2 Bank Charges Under no circumstances shall Seller incur any bank charges as a result of the Buyer's payment methods, including any and all UK and international transfer charges. If any such charges are incurred by Seller, Seller shall invoice Buyer for the amount of the same and Buyer shall pay such invoice within 5 working days of receipt.
4.3 Shipping Documents The full costs incurred by Seller to obtain any documents legally required for the shipment of Buyer's order will be invoiced to Buyer and will be paid in full by Buyer before the shipment is released.
4.4 Obligations to Pay Under no circumstances shall payment for the Goods be suspended. Payment shall be made in full without any deduction or withholding (except as required by law) of any such amount in whole or in part and regardless of any claims in respect of faulty goods. Seller reserves the right to set off any sums due to Seller from Buyer against any sums due to Buyer from Seller.
4.5 VAT The price of the Goods is exclusive of amounts due in respect of value added tax ("VAT"). Buyer shall, on receipt of a valid VAT invoice from Seller, pay to Seller such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
4.6 Interest on Overdue Accounts Interest at the rate of 4% over the base-lending rate of Seller's principal bank in the UK from time to time may be charged and payable as and from the due date for payment until the amount is discharged in full.
5 Delivery Terms
5.1 Delivery The delivery period for dispatch of Goods, as set out in the order confirmation, shall be used
as an estimate made in good faith, which Seller will use its best efforts to comply with and the time of delivery is not of the essence. Seller will not be required to fulfil an alternative delivery period or quota imposed by Buyer. The Goods are deemed to be accepted by Buyer on delivery and risk in the Goods shall pass to Buyer immediately on delivery to Buyer, its employees, agents or shippers or upon Buyer being notified that the Goods are ready for collection. Buyer shall be obliged to take delivery of the Goods when Seller is ready to deliver.
5.2 Completion of Delivery Seller shall not be liable for any delay in delivering or failure to deliver the Goods to the extent caused by any event beyond its reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors), or Buyer’s failure to provide Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
6 Shipping Shipments will be ex-works. Seller shall make the Goods available at its premises or such other location as agreed with Buyer and Buyer will arrange for its own transport and shall notify Seller of any special shipping requirements when placing the order. In the event that Buyer fails to arrange its own transport, Seller may, but shall not be obliged to deliver the Goods to Buyer at Buyer’s cost. All Goods travel at the risk of and for the account of Buyer.
7 Faults; Returns; Right to Amend
7.1 Reporting Faults Buyer may reject Goods supplied by Seller to Buyer if Goods are not of the type
specified by Buyer to Seller in writing or if on delivery (i) Goods are not of satisfactory quality (within the meaning of the Sale of Goods Act 1979) or (ii) not free from material defects in design, material
and workmanship. Any faults or discrepancies in the goods must be reported to Seller in writing within 5 working days of receipt or within a reasonable time (and in any event no later than 7 working days of discovery) if latent. In any event, Seller will not accept any defect claims of any sort submitted later than 30 days from the date of receipt of the Goods by Buyer. Buyer agrees to an acceptable tolerance level of error with respect to the exact number of Goods being delivered to Buyer, and such tolerance level shall be 10% (ten per cent) either in excess of or below the exact number of goods ordered.
7.2 Returns No returns will be accepted unless previously authorised in writing by Seller. Authorised returns must be accompanied by the written authority of Seller to return the named Goods, without which, no credit note will be issued, nor credit given. Buyer is solely responsible for all costs incurred in returning Goods. Authorisation to return Goods does not constitute acceptance of fault or deficiency on the part of Seller. Within 14 days of receipt of authorised return, Seller will inspect Goods and notify Buyer of its agreement that a fault exists or reject the claim. Goods agreed to be faulty or deficient shall be repaired or replaced solely at Seller's option and Seller shall not accept responsibility for any subsequent delivery costs unless Seller agrees that such Goods are faulty and deficient. These terms and conditions shall apply to any repaired or replacement Goods supplied by Seller pursuant to this clause. When claims are rejected, Buyer shall be solely responsible for collecting Goods at its own cost and expense. Goods that are not collected shall be disposed of after 6 months from date of notification to collect. The purchase price shall remain due for the Goods.
7.3 Right to Amend Seller shall be entitled with Buyer's consent, which shall not be unreasonably withheld, to amend, change or alter the specification of any Goods to be supplied to Buyer according to market conditions and demands.
8 Title No Legal or beneficial ownership of the Goods shall pass from Seller to Buyer unless and until Buyer has made full payment to Seller of all sums due in respect of such Goods and any previous debts have been settled (irrespective of whether the Goods have been delivered to Buyer or not). Until title in the Goods has passed to Buyer, Buyer shall: (a) hold the Goods on trust for Seller; (b) store the Goods separately from all other goods held by Buyer so that they remain identifiable as Seller’s property; (c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; and (d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery, notwithstanding that the Buyer may resell or use the Goods in the ordinary course of its business. If before title to the Goods passes to Buyer the Buyer becomes subject to any of the events listed in clause 11(ii)-(vii) (inclusive), or Seller reasonably believes that such event is about to happen and notifies Buyer accordingly, then, provided that the Goods have not been resold, and without limiting any other right or remedy Seller may have, Seller may at any time require Buyer to deliver up the Goods and, if Buyer fails to do so promptly, enter any premises of Buyer or of any third party where the Goods are stored in order to recover them.
9 Intellectual Property Rights All present and future intellectual property rights of any nature, including but not limited to any design rights, trade marks, domain names, titles, characters, literary and artistic rights and any rights related to an existing or newly created three dimensional object, in any Goods supplied in furtherance of these terms and conditions are and remain the property of Seller.
10 Exclusion and Limitation of Liability Nothing in this agreement shall exclude or limit Seller’s liability for (i) death or personal injury caused by Seller's negligence (ii) fraud, or (iii) fraudulent misrepresentation. Seller shall not be liable to Buyer, whether in contract, tort (including negligence) breach of statutory duty or otherwise for any loss of profit or any indirect or consequential loss arising under or in connection with this agreement. Seller’s total liability to Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort, breach of statutory duty or otherwise, shall in no circumstances exceed 100% of the price of the Goods.
11 Termination for Buyer’s Default If Buyer (i) fails to comply with any of the these terms (ii) defaults on payment of any sum due to Seller (iii) fails to take delivery of any Goods (iv) becomes insolvent or unable to pay its debts (as defined in Section 123 of the Insolvency Act 1986), proposes a voluntary arrangement, has a receiver, administrator or manager appointed over the whole or any part of its business or assets (v) if any petition shall be presented, order shall be made or resolution passed for its winding up (except for the purposes of a bona fide amalgamation or reconstruction), bankruptcy or dissolution (vi) if it shall otherwise propose or enter into any composition or arrangement with its creditors or any class of them, if it ceases to carry on business or if it claims the benefit of any statutory moratorium, or (vii) if any other event analogous to any of the foregoing occurs in any jurisdiction outside of the United Kingdom, the Seller shall be entitled to terminate this agreement on notice to Buyer and shall further be entitled to take possession of all unpaid Goods in the possession or under the control of Buyer at the sole cost and expense of Buyer and/or any deposit paid to the Seller shall be forfeited.
12 Miscellaneous 12.1 Confidentiality Buyer and Seller agree that they shall not at any time disclose to any person any
confidential information concerning the business, affairs, customers, clients or suppliers of the other unless and to the extent that such disclosure is (i) to an employee, officer, representative or adviser who needs to know such information for the purposes of carrying out the obligations under these terms and conditions (and Buyer and Seller shall ensure that such persons comply with these terms) or (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. Buyer and Seller shall not use the other's confidential information for any purpose other than to perform their respective obligations under these terms and conditions.
12.2 Severance If any provision or part-provision of these terms and conditions 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 term shall not affect the validity and enforceability of the rest of these terms and conditions.
12.3 Waiver A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.4 Third Party Rights A person who is not a party to this agreement shall not have any rights under or in connection with it and the parties intend that the Contract (Rights of Third Parties) Act 1999 shall not apply to this agreement.
12.5 Law and Jurisdiction In case of dispute, the courts of England and Wales shall have exclusive jurisdiction and the court shall apply English Law. Seller reserves to itself alone the right to bring proceedings in the appropriate court of the country of Buyer.