Wholesale General Terms
ESSKA SHOES LIMITED (‘the Company")
TERMS AND CONDITIONS OF SALE
All business is carried on subject to the following terms and conditions (“Terms”), except as varied by specific written agreement of the Company. By placing any order with the Company the customer shall be deemed to have agreed to and accepted these Terms. In these Terms “Contract” means the contract for the supply of Goods formed by the Company's acceptance of the customer's order.
1. No order will be binding upon the Company unless and until accepted by the Company in writing or by delivery of any goods the subject of the order (“Goods”).
2. Orders are accepted only on the basis that these Terms (or varied as aforesaid) apply to the order. Accordingly any terms endorsed on or contained or referred to in any customer's order or confirmation or otherwise communicated to the Company which are inconsistent with these Terms and are not specifically agreed to in writing by the Company, shall be deemed to be superseded and nullified by these Terms.
3. The Company reserves the right to amend any accidental error or omission on quotations, order acknowledgements, invoices or credit notes.
4. Although all delivery dates stated by the Company are given in good faith and all reasonable efforts will be made to adhere to them, the Company accepts no liability for any failure to comply with such dates by reason of any cause beyond the Company’s reasonable control. Time of delivery shall not be of the essence.
5. The Company shall be entitled to make partial deliveries and failure to deliver part only of any order shall not entitle the customer to reject the Goods.
6. If the customer fails to take delivery of the Goods on the date of delivery, the Company shall, without prejudice to its other rights, be entitled to store the Goods at the customer's risk and the customer shall pay all storage and additional carriage costs incurred.
7. Whilst every effort will be made to supply Goods in accordance with samples and/or agreed specifications the Company reserves the right to modify specifications, designs and materials where such modifications do not materially affect the quality or fitness for purpose of the Goods or to comply with any applicable standards or legal requirements.
8. Unless otherwise notified to the customer, Goods will be invoiced at the price stipulated in the Company’s published price list current at the date of the acceptance of the order. In the case of an order for delivery by instalments each instalment shall be invoiced at the price stipulated in the Company's published price list at the date of despatch of such instalment. Such prices are exclusive of VAT.
9. Prices include delivery to the customer's single address, except that carriage will be charged extra:
9.1 where the delivery address is outside the UK, European Union and United States of America; or
9.2 where the invoice value of the order is less than two hundred pounds (£200) (excluding VAT) or fewer than eight (8) pairs or pieces (or such values or quantities as notified by the Company to the customer from time to time); in which case carriage charges shall be notified to the customer in advance.
10. The Company reserves the right to request and receive a deposit of up to 100% of the total order value prior to despatching the order where:
10.1 the Company is unable to credit insure the customer.
10.2 the customer has previously failed to pay the Company within the payment term stipulated in the Company’s Contract.
10.3 the Company and the customer have no previous trading history
11. Unless otherwise agreed, the Company shall invoice the Goods on or after despatch of the Goods. The Company shall be entitled to invoice each instalment as and when each instalment is despatched. Payment of all sums shall be made in the currency stipulated in the Company’s Contract and within the payment term stipulated in the Company’s Contract from the date of the relevant invoice. The Company may sue for any monies outstanding beyond this date even if property in any relevant Goods has not passed to the customer.
12. If any payment is not made in full by the due date then, without affecting any other right which it may have, the Company may deduct any outstanding amounts from any monies owed to the customer on any account whatsoever.
13. Interest on any outstanding amounts may be charged which shall accrue from the due payment date until the date of payment at a rate of two percent (2%) above Barclays Bank plc’s base lending rate from time to time in force. No payment shall be deemed to have been made until the Company's account is credited with the relevant cleared funds.
14. The customer may not withhold or make any deduction from or set off against any payment due to the Company for any reason.
15. Where sales are subject to FOB terms (as defined in the latest published version of Incoterms from time to time). It is the customer's responsibility to obtain all necessary import licences, clearances and other consents necessary for the purchase of the Goods and to ensure that the Goods comply with all local legislative or other legal requirements.
16. The Company's obligations with regard to any Goods which are shown to the Company's satisfaction to be defective in materials or workmanship at the time of delivery or to be a shortfall in quantity delivered shall be limited to replacing or giving credit for (at the sole discretion of the Company) those of the Goods which are in excess of two and a half per cent (2.5%) of the total of the Goods distributed under any Contract, provided that:
16.1 the customer inspects the Goods on delivery and notifies the Company within three days of delivery of any alleged defects, shortage in quantity or damage. If the customer fails to comply with these provisions, the Goods shall be deemed conclusively to be in accordance with the Contract and free from any defect or damage which would be apparent on a reasonable examination of them;
16.2 when signing for deliveries the customer must state clearly on the delivery note any damage or shortages;
16.3 loss or non-delivery must be notified in writing to the Company and to the carrier within fourteen (14) days of the despatch date on the advice note or invoice;
16.4 where a defect would not have been apparent on a reasonable examination under clause 16.1, the customer notifies the Company as soon as reasonably possible when the defect becomes apparent or within ninety (90) days of delivery whichever is earlier; and
16.5 the customer provides all information and assistance required by the Company to investigate any suspected defect and, if required, permits the Company to inspect the Goods concerned at any premises where the same are located. Further details of the Company's returns policy will be communicated to the customer in writing from time to time.
17. Clause 16 defines the Company’s full liability in respect of the Goods. All other conditions, warranties or other undertakings concerned with the Goods whether express or implied by statute, common law, custom, usage or otherwise, are excluded except that nothing in these Terms shall exclude any liability of the Company for death or injury resulting from negligence or for breach of terms as to title under Section 12 of the Sale of Goods Act 1979.
18. Without prejudice to the provisions of clauses 16 and 17, the Company shall not be liable for any costs, claims, damages, losses or expenses arising out of any tortious act or omission or any breach of contract or statutory duty calculated by reference to profits, income, production or accruals or loss of such profits, income, production or accruals.
19. Save where the law prohibits such limitation of liability and without prejudice to clauses 16, 17 and 18, the liability of the Company shall not in any circumstances exceed the invoice value of the Goods.
20. No order may be cancelled and no Goods may be returned without the Company's prior written agreement. Any returns which the Company agrees to accept must be forwarded carriage prepaid to the Company and the customer shall also comply with any other provisions of the Company's returns policy from time to time in place. On returns that require repackaging or re-boxing, an appropriate charge will be made.
21. Goods which the Company has agreed to sell to the customer shall be at the customer's risk as soon as they are delivered to the customer's premises or other agreed destination. These Goods shall remain the property of the Company until such time as the customer shall have paid the Company the agreed price, together with the full price of any other goods sold to the customer payment for which is outstanding. The passing of title and risk in the Goods supplied by the Company shall be as follows:
(a) from the time of delivery, the Goods shall be at the customer's risk who shall be solely responsible for their custody and maintenance but, unless otherwise expressly agreed in writing, the Goods shall remain the Company's property until all payments to be made by the customer under this Agreement and any other agreement between the Company and the customer and on any other account whatsoever have been made in full and unconditionally. Whilst the Company's ownership continues the customer shall keep the Goods labelled as belonging to the Company and separate and identifiable from all other goods in its possession as bailee for the Company;
(b) the customer's right to possession of the Goods shall immediately cease if the customer does anything or fails to do anything which would entitle an administrator or administrative receiver to take possession of any of the customer’s assets or entitle any person to present against the customer a petition for winding up;
(c) the customer may only re-sell the Goods to the customer's clients in the ordinary course of the customer's business as a fiduciary and trustee for the Company. In the event of any resale by the customer of the Goods the Company's beneficial entitlement shall attach to the proceeds of sale or other disposition thereof so that such proceeds or any claim therefor shall be assigned to the Company and until such assignment shall be held on trust in a separate identified account for the Company by the customer and such proceeds shall not be mingled with other moneys or paid into any overdrawn bank account and shall at all times be identifiable as the Company's moneys;
(d) without prejudice to the equitable rules as to tracing, in the event of failure to pay any and all the payments for the Goods in accordance with these Conditions the Company shall have power to re-sell the Goods, such power being additional to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise and for such purpose the Company and its servants and agents may forthwith enter upon any premises or land occupied or owned by the customer to remove the Goods; and
(e) pending payment of any and all payments due hereunder for the Goods the customer shall at all times keep the Goods comprehensively insured against loss or damage by accident, fire, theft and other risks usually covered by insurance in the type of business carried on by the customer in an amount at least equal to the balance of the payments due hereunder for the same from time to time remaining outstanding. The policy shall bear an endorsement recording the Company's interest.
22. The Company or any related companies shall have the right to cancel all or any contracts with the customer or withhold delivery of any Goods if:-
22.1 the customer fails to pay any monies owing to the Company or any related companies by the due date;
22.2 the customer commits any breach of any contract with the Company or any related companies;
22.3 the customer compounds with or executes an assignment for the benefit of its creditors or commits any act of bankruptcy or goes into liquidation or has a receiver, administrative receiver or administrator appointed over all or part of its assets or has a third party levy distress on their property, or suffers any similar or analogous act. In the event of delivery being withheld the Company shall be entitled as a condition of resuming delivery to require pre-payment of or such security as it may require for the payment of the price of any further delivery.
23. The construction, validity and performance of all Contracts between the parties shall be governed by English law and shall be subject to the exclusive jurisdiction of the English Courts although this shall not limit the right of the Company to commence proceedings in any other jurisdiction the Company deems appropriate.
24. Any suggested retail prices quoted in the Company's price lists or catalogues shall not limit the customer’s right to set its own retail prices.
25. The Company shall not be liable in any way for loss, damage or expense arising directly or indirectly from any failure or delay in performing any obligation under any contract caused by any circumstances beyond its reasonable control, which shall, without limiting the generality of the foregoing, be deemed to include war or any other action of military forces, terrorism, riot, civil commotion, sabotage, vandalism, accident, break-down or damage to machinery or equipment, fire flood, legislative or administrative interference, acts of God, strike, lock-out or other industrial disputes (whether or not involving employees of the Company) or shortage of materials or the Company's inability to procure materials or supplies. On the occurrence of any such event, the Company may at its discretion, perform, suspend performance of or terminate the contract.
26. The Customer shall ensure that no trade mark or logo used on or in connection with any of the Goods or their packaging is added to, obscured, removed, defaced, altered or otherwise interfered with in any way.
27. Trade marks and/or logos applied to any of the Goods may be used in advertising material intended for use in retail outlets or in catalogues for the purpose only of promoting the retail sale of the Goods concerned and provided that the Company's prior written consent is obtained.
28. Except as permitted by clause 27 above the customer shall not make any use of any logo or trade mark owned or used by the Company (whether in connection with the goods or otherwise) or any part thereof for any purpose whatsoever.
29. Any part of these Terms which is void or unenforceable shall be deemed severable and shall not affect any other part of these Terms.
30. No waiver or forbearance by the Company (express or implied) in enforcing any of its rights under a Contract shall prejudice its right to do so in the future.