CANTERBURY OF NEW ZEALAND LIMITED
GENERAL TERMS AND CONDITIONS OF SALE
Customers shall not re-sell the Goods to the customer’s clients based outside of the UK.
1. Formation
a) All quotations and offers are made and Orders are accepted subject to and shall be deemed to incorporate the Conditions and they shall apply to all Contracts to the exclusion of any other terms and conditions including without limit those which the Buyer purports to apply by any means under any Order. If agreed by the Company in writing (and signed by a duly authorised officer of the Company) these Conditions may be varied in an Order. In the event of a conflict between these Conditions and an Order, the terms of the Order shall take precedence but only to the extent that such term is unambiguously and expressly stated to vary these Conditions.
b) All Orders shall be deemed to be an offer and shall only be deemed accepted by the Company upon the earlier of the issue of a written acknowledgement of order by the Company or delivery of the Work.
c) The Company may modify the specification of Goods or Services without notice provided that such modification does not materially affect the Services or the performance of the Goods. The Contract is not a contract for sale of goods by description. All descriptive matter, specifications and advertising issued by the Company from time to time is solely aimed at giving an approximate idea of the Work described in them and will not form part of the Contract.
d) Any Order accepted by the Company may only be cancelled by the Buyer with the prior written consent of the Company and on terms that the Buyer shall indemnify the Company in full against all losses (including loss of profit), costs, damages, charges and expenses incurred (directly or indirectly) by the Company as a result of such cancellation.
2. Deliveries and Non-Delivery
a) Delivery times/ dates named/accepted by the Company are given in good faith but are an estimate only. Time of delivery of Goods or provision of Services is not of the essence. Subject to Condition 8.a), the Company shall not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by failure (for any reason) to meet the delivery time/date stated/agreed (even if caused by the Company's own negligence), further, the Buyer shall have no right to cancel the Contract in the event of such a failure.
b) Work will be provided and Goods delivered as stated in the Company's acknowledgement of order or if one is not issued as agreed by the Company. Delivery shall be deemed to take place when the Goods arrive at the place stated in the Company's acknowledgement of order or if one is not issued at such place as is agreed by the Company except that delivery to a carrier for the purpose of transmission to the Buyer shall be deemed to be delivery to the Buyer. Section 32(2) of the Sale of Goods Act 1979 shall not apply.
c) The Company shall make such arrangements for carriage of the Goods and their insurance during carriage as it thinks appropriate. Goods will be packed so as to adequately protect against damage in normal conditions of transit of usual duration. Where, at the Buyer's request, Goods are forwarded by any means involving a higher carriage charge than would be incurred by the Company's usual means of carriage, then the additional charge shall be paid by the Buyer in addition to the price when the price is due.
d) The Company may deliver Goods in instalments and perform Services in sections in any sequence. Deliveries of further instalments and performance of further sections may be withheld until the Goods and/or Services comprised in earlier instalments and/or sections have been paid for in full. Default by the Company, howsoever caused, in respect of one or more instalments shall not entitle the Buyer to terminate the relevant Contract as a whole.
e) If: the Buyer fails or refuses to accept delivery of any Goods when they are ready for delivery in accordance with the relevant Contract; or the Company agrees (at it's sole discretion) to postpone delivery of the Goods at the request of the Buyer; or the Buyer fails to provide any instructions consents or authorisations required to enable the goods to be delivered on the due date; then risk in the Goods shall pass to the Buyer, delivery of the Goods shall be deemed to have taken place and the Company may store or arrange for storage of such Goods and charge the Buyer for all related costs and expenses (including storage and insurance) and may sell such Goods 28 days or more after such failure or refusal and deduct any monies payable to the Company by the Buyer from the sale proceeds and account to the Buyer for any excess or charge the Buyer for any shortfall below the Contract price.
f) If the Company agrees to permit the Buyer to collect the Goods from the Company's place of business then delivery shall be deemed to take place when the Company notifies the Buyer that the Goods are ready for collection and unless otherwise agreed in writing by the Company it is a condition of the Contract that the Buyer will collect the Goods within 7 days of such notice.
g) Upon delivery to the Buyer, all Goods should be examined. The Company shall not be liable for any shortages in, or non-delivery of, Goods unless the same is notified by the Buyer to the Company (together with all specific details) in writing within 10 days of the actual delivery (as relevant). Subject to such notice being provided the Company shall, if it is satisfied that any Goods have not been delivered and it is not result of force majeure (as described in clause 8), at its sole discretion, either arrange for delivery as soon as reasonably possible or give to the Buyer a credit which is a proportion of the Contract price relating to the non-delivered or shortfall of Goods. Shortages in, or non-delivery of some or part of the Goods shall not effect the Contract in respect of the other or other parts of the Goods.
3. Force Majeure
In the event that the Company is prevented or delayed in or from carrying out its obligations under the Contract as a result of any cause beyond its control such as but not limited to: acts of God; governmental intervention or restriction, pandemics, import or export regulations; war; riots; strikes or trade disputes (including by and with the Company's own employees); power failure; inadequate performance of, failure of or incorrect processing by computer systems; fire; flood; default of suppliers or sub-contractors, or breakdown of plant, machinery or vehicles then the Company shall be relieved of its obligations and liabilities under the Contract for as along as such fulfilment is prevented.
4. Risk/Title
a) Risk of damage to or loss of the Goods shall pass to the Buyer upon delivery or at the notified time for delivery if the Buyer fails for whatever reason to take delivery of the Goods at the notified time. Section 20(2) Sale of Goods Act 1979 shall not apply.
b) Title to the Goods (both legal and equitable) shall remain with the Company until full payment with cleared funds of all monies due from the Buyer to the Company under all Contracts and agreements between the Company and the Buyer has been made, or title is properly vested in some other person by the operation of any statute.
c) Until title to the Goods passes, the Buyer shall hold the Goods on a fiduciary basis as the Company's bailee and must store the Goods (at no cost to the Company) such that they are easily identifiable as the property of the Company and must not destroy or deface any identifying marks on the Goods or their packaging; and must keep the Goods insured on the Company's behalf for the full price of the Goods against "all risks" to the reasonable satisfaction of the Company and produce the policy of insurance to the Company upon request and must hold all proceeds of such insurance on trust for the Company and shall not mingle them with any other money nor pay the proceeds into an overdrawn bank account.
d) Until title to the Goods passes, the Buyer shall still be entitled to re-sell, use or otherwise dispose of the Goods in the ordinary course of its business provided that the Buyer shall ensure that the entire proceeds arising by virtue of any such sale, use or disposal shall be held in trust for the Company and shall not be mixed with any other monies or paid into any other overdrawn bank account and shall at all times be identifiable as monies belonging to the Company.
e) Until such time as title to the Goods passes to Buyer and, providing the Goods are still in existence and have not been re-sold or incorporated into other goods, Company shall be entitled to require Buyer to deliver up the Goods and, if Buyer fails to do so, to enter upon the premises (with or without vehicles) where the Goods are kept to re-possess them. Buyer shall indemnify the Company in full against all losses (including loss of profit), costs, damages, charges and expenses incurred (directly or indirectly) by the Company in connection with any re-possession or attempted re-possession of the Goods.
5. Price
a) Unless fixed prices have been agreed in writing by the Company all prices are subject to alteration without notice and will be invoiced at the price ruling at the date of despatch of Goods or performance of Services. No Work will be supplied on a sale or return basis.
b) Unless otherwise agreed in writing by the Company prices set out in any of the Company's price lists, quotations and acknowledgement of order are exclusive of the costs of delivery, packing, insurance or any value added, purchase or other taxes which shall be payable in addition to the price when the price is due provided that if the net price of the Work requested is less than £250 then the Company shall be entitled to charge a £5 carriage and small order administration charge.
c) If the Buyer is a new customer of the Company then, unless otherwise agreed in writing by the Company, the initial Order of the Buyer shall not be less than £500.
6. Payment
a) The Company may invoice Buyers who have been granted by the Company (in its sole discretion) a credit account facility for the Goods and/or the Services at any time after delivery of the Goods and/or performance of the Services and Goods delivered in instalments and Services performed in sections may be invoiced separately provided that if delivery of Goods and/or performance of Services is postponed at the request or by the default of the Buyer then the Company may submit its invoice at any time after the Goods are ready for delivery and/or Services are ready for performance or would have been ready in the ordinary course but for the request or default on the part of the Buyer. Such Buyers shall pay the Contract price within 30 days of the date of invoice. The Company may (in its sole discretion) amend the terms of or withdraw such credit account facility at any time without notice with immediate effect.
b) In respect of all other Buyers, the Company shall invoice the Buyer for the Contract price on acceptance of an Order. Unless otherwise agreed in writing by the Company Buyers who have not been granted a credit account facility shall pay 50% of the Contract price (at a minimum) within 5 days of the Company's acceptance of an Order and the balance (at a maximum, 50%) prior to delivery of the Goods and/or performance of the Services (for the avoidance of doubt no Goods will be shipped nor Services performed prior to payment in full).
c) Payment shall only be deemed received by the Company from the Buyer upon receipt by the Company of cleared funds. Payment shall be made in full without any deduction, set off or abatement on any grounds. The Company may appropriate any payment made by the Buyer to any outstanding invoice. The Company may bring an action for the price of the Goods even though the property in them may not have passed to the Buyer.
d) Time for payment of the Contract price (including, without limit, any costs or charges payable pursuant to Condition 2.c)) shall be of the essence. The Buyer shall indemnify the Company in full against all expenses and legal costs incurred by the Company in recovering overdue amounts. Interest shall be payable by the Buyer on overdue amounts (before as well as after judgement) at the annual rate of 2 per cent above the base lending rate of Lloyds Bank plc from time to time on the outstanding amount until the Contract price and/or such costs and/or charges are paid in full.
7. Quality
a) The Buyer is relying on its own skill and judgement in relation to the Work irrespective of any knowledge of the Company or its servants, agents or employees or as to the purpose for which the Work is supplied or its suitability.
b) Subject to Conditions 7.a) and 7.c) the Company warrants that all Goods shall upon delivery be of satisfactory quality and be reasonably fit for any purpose for which they are commonly supplied and that all Services shall be carried out with reasonable skill and care.
c) The warranty given in Condition 7.b) will not apply:
i) where the defect complained of arises from any drawing, design, specification or IPR supplied by the Buyer or arises from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company's instructions (whether oral or in writing or whether relating without
limit to the fabrication (including, without limit, the quality or performance of fabrics), operation, use or maintenance of the Goods), or misuse or alteration or repair of the Goods without the Company's prior written approval;
ii) if the Company or its agents is not permitted to safely inspect the Work;
iii) to any parts, materials or equipment not manufactured by the Company, in respect of which the Buyer shall only be entitled to the benefit of any warranty or guarantee as is given by the manufacturer to the Company; or
iv) to any Goods which have been designated "seconds", "mediums", "clearings" or specials.
d) The obligations of the Company under the Contract are limited such that in the event of a breach by the Company of the warranty in Condition 7.b) or any defect in any Goods or Services the Company shall only be obliged (and shall have no further liability in contract, negligence or otherwise for any defect in quality of the Goods and/or Services or fitness for purpose of the Goods) at its option either to credit the price (if already paid) attributable to the faulty Goods or Services or repair, rectify or replace the faulty Goods or Services provided that such Goods are returned to the Company or its agent in their delivered state at the Buyer's expense if so requested by the Company.
8. Limitation of Liability
a) Nothing in these Conditions shall limit or exclude the Company's liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation, damage suffered as a result of the breach of the warranties as to title and quiet enjoyment implied under English law and/or any other loss or damage the exclusion or limitation of which is prohibited by English law..
b) The Company shall not be liable to the Buyer in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof, (i) for any economic loss of any kind whatsoever, including without limit loss of profit, business contracts, revenues or anticipated savings, or (ii) for damage to the Buyer's reputation or goodwill, or (iii) for any loss resulting from any claim made by any third party, or (iv) for any special, indirect or consequential loss or damage of any nature whatsoever.
c) Without prejudice to Condition 7.d), 8.a) and 8.b) the Company's liability in contract tort, (including negligence or breach of statutory duty) or otherwise arising by reason of or in connection with the Contract shall be limited to the Contract price.d)The Buyer warrants that the use by the Company and/or any person in the Group of any IPRs, designs, specifications, drawings or other materials or information of any nature provided to the Company and/or any person in the Group by the Buyer pursuant to an Order shall not infringe any third party's IPRs. If any claim is brought or threatened against the Company and/or any person in the Group in respect of such an infringement the Company, and/or any person in the Group, (as the case may be) shall be entitled to suspend carrying out further work to the Buyer, and the Buyer shall indemnify the Company in full (and/or, as the case may be, any person in the Group) against all actions, claims, costs, demands, expenses and liabilities of whatsoever nature suffered or incurred by the Company and/or any person in the Group as a result of any such claim or threatened claim brought against the Company and/or any person in the Group.
e) Nothing in these Conditions shall be construed as a representation or warranty by the Company that the design, manufacture, use or sale of the Goods or the provision of the Services is not an infringement of any third party's IPRs.
9. Intellectual Property Rights and Confidentiality
a) The Buyer shall not, under any circumstances acquire any right in or to any of the IPRs (including, without limitation, copyright) subsisting in, resulting from or relating to Work, or any documents, drawings, specifications and/or patterns relating thereto either (a) supplied by the Company or any person in the Group to the Buyer in connection with Work, or (b) resulting from Work, unless otherwise expressly agreed by the Company in writing. If the Buyer shall in any way acquire any such rights then the Buyer shall immediately inform the Company and shall forthwith take such steps as may be required by the Company to assign such rights or vest such title in the Company.
b) The Company and any person in the Group shall have the right to apply any trade marks, trade names and/or service marks to the Goods. The Buyer acknowledges that no rights are granted to the Buyer by virtue of the Buyer's use of such trade marks, trade names and/or service marks. The Buyer shall not deface, remove or obliterate any trade marks, trade names or logos applied +by the Company and/or any person in the Group on or in relation to the Goods.
c) The Buyer shall keep confidential and not use, without the prior written consent of the Company, all or any information including without limit, those (as referred to in Condition 9.a)) supplied by the Company to the Buyer or disclosed to or obtained by the Buyer pursuant to or as a result of the Contract, and shall not divulge the same to any third party except to the extent that any such information is or becomes public through no fault of the Buyer, or disclosure of the same is required by law or by any other governmental or other regulatory body.
10. Termination
Without prejudice to any of its other rights the Company may immediately terminate the Contract and demand payment of any amount due or accruing to the Company whether under the Contract or otherwise, re-sell the Goods and/or withhold or cancel any deliveries if any of the following occurs or is likely to occur:
a) the Buyer is in breach of any of its obligations under the Contract which, if capable of remedy, the Buyer has not remedied within 30 days of receiving written notice from the Company; or
b) the Buyer is or becomes Insolvent or the Buyer suffers a distress or execution or other legal process to be levied or enforced or sued upon or against any part of the property, assets or revenue of the Buyer which is not discharged or stayed within 7 days.
11. General
a) Any temporary waiver or indulgence by the Company in exercise of its rights will not restrict it exercising any of its rights at a subsequent date.
b) The Company may make changes to these Conditions from time to time. Any such change shall apply to all Orders placed after the date of the change. The Buyer is reminded of the need to periodically check these Conditions for changes.
c) The Buyer shall not be entitled to assign or sub-contract any of its rights or the obligations under the Contract, without the prior written consent of the Company. The Company may assign, license or sub-contract all or any part of its rights or obligation under the Contract without the Buyer's consent.
d) Each Contract contains the whole agreement between the Company and the Buyer and supersedes all prior agreements, understandings and arrangements whether oral or in writing. All other understandings, agreements, warranties, conditions, terms or representations, whether express or implied, statutory or otherwise, are excluded to the fullest extent permitted by law
e) These Conditions and each Contract (including any associated non-contractual claims and disputes) shall be construed in accordance with and governed in all aspects by the Laws of England Law and the Buyer submits to the exclusive jurisdiction of the English courts.
f) The Company may perform its obligations either on its own or procure the performance of its obligations through its Group. These Conditions do not create any right enforceable by any person who is not a party, except that the terms of these Conditions may be enforced by any member of the Group subject to and in accordance with the terms of these Conditions and the Contracts (Rights of Third Parties) Act 1999.
12. Export Sales
Notwithstanding any other Condition, where Goods are sold for export outside the United Kingdom:
a) the Uniform Laws on International Sales Act 1967 shall not apply and the Company shall be under no obligation to give notice under Section 32(3) of the Sales of Goods Act 1979;
b) Section 26(3) of the Unfair Contract Terms Act 1977 shall apply and notwithstanding Condition 8.a) all liabilities for injury or death arising directly from the use of the Goods are expressly excluded;
c) Unless otherwise agreed in writing by the Company the currency will be pounds sterling and payment shall be by confirmed irrevocable letter of credit to be opened at a bank nominated by the Company at the Buyer's expense;
d) Delivery of Goods and prices quoted and set out in the Company's acknowledgement of order (if any) shall be ex works (as defined in INCOTERMS 2000); and
e) The Buyer shall be responsible for complying with any legislation or regulations governing the export of the Goods from the United Kingdom and governing the importation of the Goods into the country of destination and for the payment of any duties or taxes on them.
13. Interpretation
In these Conditions unless the context requires otherwise any reference to the singular shall include the plural and vice versa and the following expressions shall have the following meanings:
"Buyer" means the person, firm or company that has requested any Work whose details appear on the Order;
"Company" means Canterbury of New Zealand Limited;
"Conditions" means the standard terms and conditions of sale set out herein;
"Contract" means the contract between the Company and the Buyer which is made up of the Order and these Conditions for the supply of Work;
"Goods" means any goods supplied or to be supplied by the Company as specified in the Order;
"Group" means any company which a holding company or ultimate holding company of the Distributor and each of its subsidiary companies and its holding company's and ultimate holding company's subsidiary companies from time to time, "holding company" and "subsidiary" having the
meanings given to them in section1159 of the Companies Act 2006;.
"Insolvency" means in relation to an individual, partnership or company the appointment of any nominee, sequestrator, trustee, supervisor, receiver or liquidator (as relevant) pursuant to the Insolvency Act 1986 or the appointment of a manager or receiver (as relevant) pursuant the Law of
Property Act 1925 or the occurrence or sufferance of anything equivalent under any jurisdiction other than England or Wales or the calling of any meeting or the passing of any resolution whether formal or informal for the purpose of proposing the taking any of the foregoing
steps and "Insolvent" shall be construed accordingly;
"IPRs" means any intellectual property rights of any nature including without limit any and all inventions, patents, utility models, design rights, copyright, know how, trade secrets, confidential information, trade marks, service marks, trade names and goodwill;
"Order" means an order placed by the Buyer with the Company for Work;
"Services" means any services supplied or to be supplied to the Buyer by the Company or the Group as specified in the Order; and
"Work" means Goods and/or Services.
CANTERBURY OF NEW ZEALAND LIMITED
GENERAL TERMS AND CONDITIONS OF SALE
Customers shall not re-sell the Goods to the customer’s clients based outside of the UK.
1. Formation
a) All quotations and offers are made and Orders are accepted subject to and shall be deemed to incorporate the Conditions and they shall apply to all Contracts to the exclusion of any other terms and conditions including without limit those which the Buyer purports to apply by any means under any Order. If agreed by the Company in writing (and signed by a duly authorised officer of the Company) these Conditions may be varied in an Order. In the event of a conflict between these Conditions and an Order, the terms of the Order shall take precedence but only to the extent that such term is unambiguously and expressly stated to vary these Conditions.
b) All Orders shall be deemed to be an offer and shall only be deemed accepted by the Company upon the earlier of the issue of a written acknowledgement of order by the Company or delivery of the Work.
c) The Company may modify the specification of Goods or Services without notice provided that such modification does not materially affect the Services or the performance of the Goods. The Contract is not a contract for sale of goods by description. All descriptive matter, specifications and advertising issued by the Company from time to time is solely aimed at giving an approximate idea of the Work described in them and will not form part of the Contract.
d) Any Order accepted by the Company may only be cancelled by the Buyer with the prior written consent of the Company and on terms that the Buyer shall indemnify the Company in full against all losses (including loss of profit), costs, damages, charges and expenses incurred (directly or indirectly) by the Company as a result of such cancellation.
2. Deliveries and Non-Delivery
a) Delivery times/ dates named/accepted by the Company are given in good faith but are an estimate only. Time of delivery of Goods or provision of Services is not of the essence. Subject to Condition 8.a), the Company shall not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by failure (for any reason) to meet the delivery time/date stated/agreed (even if caused by the Company's own negligence), further, the Buyer shall have no right to cancel the Contract in the event of such a failure.
b) Work will be provided and Goods delivered as stated in the Company's acknowledgement of order or if one is not issued as agreed by the Company. Delivery shall be deemed to take place when the Goods arrive at the place stated in the Company's acknowledgement of order or if one is not issued at such place as is agreed by the Company except that delivery to a carrier for the purpose of transmission to the Buyer shall be deemed to be delivery to the Buyer. Section 32(2) of the Sale of Goods Act 1979 shall not apply.
c) The Company shall make such arrangements for carriage of the Goods and their insurance during carriage as it thinks appropriate. Goods will be packed so as to adequately protect against damage in normal conditions of transit of usual duration. Where, at the Buyer's request, Goods are forwarded by any means involving a higher carriage charge than would be incurred by the Company's usual means of carriage, then the additional charge shall be paid by the Buyer in addition to the price when the price is due.
d) The Company may deliver Goods in instalments and perform Services in sections in any sequence. Deliveries of further instalments and performance of further sections may be withheld until the Goods and/or Services comprised in earlier instalments and/or sections have been paid for in full. Default by the Company, howsoever caused, in respect of one or more instalments shall not entitle the Buyer to terminate the relevant Contract as a whole.
e) If: the Buyer fails or refuses to accept delivery of any Goods when they are ready for delivery in accordance with the relevant Contract; or the Company agrees (at it's sole discretion) to postpone delivery of the Goods at the request of the Buyer; or the Buyer fails to provide any instructions consents or authorisations required to enable the goods to be delivered on the due date; then risk in the Goods shall pass to the Buyer, delivery of the Goods shall be deemed to have taken place and the Company may store or arrange for storage of such Goods and charge the Buyer for all related costs and expenses (including storage and insurance) and may sell such Goods 28 days or more after such failure or refusal and deduct any monies payable to the Company by the Buyer from the sale proceeds and account to the Buyer for any excess or charge the Buyer for any shortfall below the Contract price.
f) If the Company agrees to permit the Buyer to collect the Goods from the Company's place of business then delivery shall be deemed to take place when the Company notifies the Buyer that the Goods are ready for collection and unless otherwise agreed in writing by the Company it is a condition of the Contract that the Buyer will collect the Goods within 7 days of such notice.
g) Upon delivery to the Buyer, all Goods should be examined. The Company shall not be liable for any shortages in, or non-delivery of, Goods unless the same is notified by the Buyer to the Company (together with all specific details) in writing within 10 days of the actual delivery (as relevant). Subject to such notice being provided the Company shall, if it is satisfied that any Goods have not been delivered and it is not result of force majeure (as described in clause 8), at its sole discretion, either arrange for delivery as soon as reasonably possible or give to the Buyer a credit which is a proportion of the Contract price relating to the non-delivered or shortfall of Goods. Shortages in, or non-delivery of some or part of the Goods shall not effect the Contract in respect of the other or other parts of the Goods.
3. Force Majeure
In the event that the Company is prevented or delayed in or from carrying out its obligations under the Contract as a result of any cause beyond its control such as but not limited to: acts of God; governmental intervention or restriction, pandemics, import or export regulations; war; riots; strikes or trade disputes (including by and with the Company's own employees); power failure; inadequate performance of, failure of or incorrect processing by computer systems; fire; flood; default of suppliers or sub-contractors, or breakdown of plant, machinery or vehicles then the Company shall be relieved of its obligations and liabilities under the Contract for as along as such fulfilment is prevented.
4. Risk/Title
a) Risk of damage to or loss of the Goods shall pass to the Buyer upon delivery or at the notified time for delivery if the Buyer fails for whatever reason to take delivery of the Goods at the notified time. Section 20(2) Sale of Goods Act 1979 shall not apply.
b) Title to the Goods (both legal and equitable) shall remain with the Company until full payment with cleared funds of all monies due from the Buyer to the Company under all Contracts and agreements between the Company and the Buyer has been made, or title is properly vested in some other person by the operation of any statute.
c) Until title to the Goods passes, the Buyer shall hold the Goods on a fiduciary basis as the Company's bailee and must store the Goods (at no cost to the Company) such that they are easily identifiable as the property of the Company and must not destroy or deface any identifying marks on the Goods or their packaging; and must keep the Goods insured on the Company's behalf for the full price of the Goods against "all risks" to the reasonable satisfaction of the Company and produce the policy of insurance to the Company upon request and must hold all proceeds of such insurance on trust for the Company and shall not mingle them with any other money nor pay the proceeds into an overdrawn bank account.
d) Until title to the Goods passes, the Buyer shall still be entitled to re-sell, use or otherwise dispose of the Goods in the ordinary course of its business provided that the Buyer shall ensure that the entire proceeds arising by virtue of any such sale, use or disposal shall be held in trust for the Company and shall not be mixed with any other monies or paid into any other overdrawn bank account and shall at all times be identifiable as monies belonging to the Company.
e) Until such time as title to the Goods passes to Buyer and, providing the Goods are still in existence and have not been re-sold or incorporated into other goods, Company shall be entitled to require Buyer to deliver up the Goods and, if Buyer fails to do so, to enter upon the premises (with or without vehicles) where the Goods are kept to re-possess them. Buyer shall indemnify the Company in full against all losses (including loss of profit), costs, damages, charges and expenses incurred (directly or indirectly) by the Company in connection with any re-possession or attempted re-possession of the Goods.
5. Price
a) Unless fixed prices have been agreed in writing by the Company all prices are subject to alteration without notice and will be invoiced at the price ruling at the date of despatch of Goods or performance of Services. No Work will be supplied on a sale or return basis.
b) Unless otherwise agreed in writing by the Company prices set out in any of the Company's price lists, quotations and acknowledgement of order are exclusive of the costs of delivery, packing, insurance or any value added, purchase or other taxes which shall be payable in addition to the price when the price is due provided that if the net price of the Work requested is less than £250 then the Company shall be entitled to charge a £5 carriage and small order administration charge.
c) If the Buyer is a new customer of the Company then, unless otherwise agreed in writing by the Company, the initial Order of the Buyer shall not be less than £500.
6. Payment
a) The Company may invoice Buyers who have been granted by the Company (in its sole discretion) a credit account facility for the Goods and/or the Services at any time after delivery of the Goods and/or performance of the Services and Goods delivered in instalments and Services performed in sections may be invoiced separately provided that if delivery of Goods and/or performance of Services is postponed at the request or by the default of the Buyer then the Company may submit its invoice at any time after the Goods are ready for delivery and/or Services are ready for performance or would have been ready in the ordinary course but for the request or default on the part of the Buyer. Such Buyers shall pay the Contract price within 30 days of the date of invoice. The Company may (in its sole discretion) amend the terms of or withdraw such credit account facility at any time without notice with immediate effect.
b) In respect of all other Buyers, the Company shall invoice the Buyer for the Contract price on acceptance of an Order. Unless otherwise agreed in writing by the Company Buyers who have not been granted a credit account facility shall pay 50% of the Contract price (at a minimum) within 5 days of the Company's acceptance of an Order and the balance (at a maximum, 50%) prior to delivery of the Goods and/or performance of the Services (for the avoidance of doubt no Goods will be shipped nor Services performed prior to payment in full).
c) Payment shall only be deemed received by the Company from the Buyer upon receipt by the Company of cleared funds. Payment shall be made in full without any deduction, set off or abatement on any grounds. The Company may appropriate any payment made by the Buyer to any outstanding invoice. The Company may bring an action for the price of the Goods even though the property in them may not have passed to the Buyer.
d) Time for payment of the Contract price (including, without limit, any costs or charges payable pursuant to Condition 2.c)) shall be of the essence. The Buyer shall indemnify the Company in full against all expenses and legal costs incurred by the Company in recovering overdue amounts. Interest shall be payable by the Buyer on overdue amounts (before as well as after judgement) at the annual rate of 2 per cent above the base lending rate of Lloyds Bank plc from time to time on the outstanding amount until the Contract price and/or such costs and/or charges are paid in full.
7. Quality
a) The Buyer is relying on its own skill and judgement in relation to the Work irrespective of any knowledge of the Company or its servants, agents or employees or as to the purpose for which the Work is supplied or its suitability.
b) Subject to Conditions 7.a) and 7.c) the Company warrants that all Goods shall upon delivery be of satisfactory quality and be reasonably fit for any purpose for which they are commonly supplied and that all Services shall be carried out with reasonable skill and care.
c) The warranty given in Condition 7.b) will not apply:
i) where the defect complained of arises from any drawing, design, specification or IPR supplied by the Buyer or arises from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company's instructions (whether oral or in writing or whether relating without
limit to the fabrication (including, without limit, the quality or performance of fabrics), operation, use or maintenance of the Goods), or misuse or alteration or repair of the Goods without the Company's prior written approval;
ii) if the Company or its agents is not permitted to safely inspect the Work;
iii) to any parts, materials or equipment not manufactured by the Company, in respect of which the Buyer shall only be entitled to the benefit of any warranty or guarantee as is given by the manufacturer to the Company; or
iv) to any Goods which have been designated "seconds", "mediums", "clearings" or specials.
d) The obligations of the Company under the Contract are limited such that in the event of a breach by the Company of the warranty in Condition 7.b) or any defect in any Goods or Services the Company shall only be obliged (and shall have no further liability in contract, negligence or otherwise for any defect in quality of the Goods and/or Services or fitness for purpose of the Goods) at its option either to credit the price (if already paid) attributable to the faulty Goods or Services or repair, rectify or replace the faulty Goods or Services provided that such Goods are returned to the Company or its agent in their delivered state at the Buyer's expense if so requested by the Company.
8. Limitation of Liability
a) Nothing in these Conditions shall limit or exclude the Company's liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation, damage suffered as a result of the breach of the warranties as to title and quiet enjoyment implied under English law and/or any other loss or damage the exclusion or limitation of which is prohibited by English law..
b) The Company shall not be liable to the Buyer in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof, (i) for any economic loss of any kind whatsoever, including without limit loss of profit, business contracts, revenues or anticipated savings, or (ii) for damage to the Buyer's reputation or goodwill, or (iii) for any loss resulting from any claim made by any third party, or (iv) for any special, indirect or consequential loss or damage of any nature whatsoever.
c) Without prejudice to Condition 7.d), 8.a) and 8.b) the Company's liability in contract tort, (including negligence or breach of statutory duty) or otherwise arising by reason of or in connection with the Contract shall be limited to the Contract price.d)The Buyer warrants that the use by the Company and/or any person in the Group of any IPRs, designs, specifications, drawings or other materials or information of any nature provided to the Company and/or any person in the Group by the Buyer pursuant to an Order shall not infringe any third party's IPRs. If any claim is brought or threatened against the Company and/or any person in the Group in respect of such an infringement the Company, and/or any person in the Group, (as the case may be) shall be entitled to suspend carrying out further work to the Buyer, and the Buyer shall indemnify the Company in full (and/or, as the case may be, any person in the Group) against all actions, claims, costs, demands, expenses and liabilities of whatsoever nature suffered or incurred by the Company and/or any person in the Group as a result of any such claim or threatened claim brought against the Company and/or any person in the Group.
e) Nothing in these Conditions shall be construed as a representation or warranty by the Company that the design, manufacture, use or sale of the Goods or the provision of the Services is not an infringement of any third party's IPRs.
9. Intellectual Property Rights and Confidentiality
a) The Buyer shall not, under any circumstances acquire any right in or to any of the IPRs (including, without limitation, copyright) subsisting in, resulting from or relating to Work, or any documents, drawings, specifications and/or patterns relating thereto either (a) supplied by the Company or any person in the Group to the Buyer in connection with Work, or (b) resulting from Work, unless otherwise expressly agreed by the Company in writing. If the Buyer shall in any way acquire any such rights then the Buyer shall immediately inform the Company and shall forthwith take such steps as may be required by the Company to assign such rights or vest such title in the Company.
b) The Company and any person in the Group shall have the right to apply any trade marks, trade names and/or service marks to the Goods. The Buyer acknowledges that no rights are granted to the Buyer by virtue of the Buyer's use of such trade marks, trade names and/or service marks. The Buyer shall not deface, remove or obliterate any trade marks, trade names or logos applied +by the Company and/or any person in the Group on or in relation to the Goods.
c) The Buyer shall keep confidential and not use, without the prior written consent of the Company, all or any information including without limit, those (as referred to in Condition 9.a)) supplied by the Company to the Buyer or disclosed to or obtained by the Buyer pursuant to or as a result of the Contract, and shall not divulge the same to any third party except to the extent that any such information is or becomes public through no fault of the Buyer, or disclosure of the same is required by law or by any other governmental or other regulatory body.
10. Termination
Without prejudice to any of its other rights the Company may immediately terminate the Contract and demand payment of any amount due or accruing to the Company whether under the Contract or otherwise, re-sell the Goods and/or withhold or cancel any deliveries if any of the following occurs or is likely to occur:
a) the Buyer is in breach of any of its obligations under the Contract which, if capable of remedy, the Buyer has not remedied within 30 days of receiving written notice from the Company; or
b) the Buyer is or becomes Insolvent or the Buyer suffers a distress or execution or other legal process to be levied or enforced or sued upon or against any part of the property, assets or revenue of the Buyer which is not discharged or stayed within 7 days.
11. General
a) Any temporary waiver or indulgence by the Company in exercise of its rights will not restrict it exercising any of its rights at a subsequent date.
b) The Company may make changes to these Conditions from time to time. Any such change shall apply to all Orders placed after the date of the change. The Buyer is reminded of the need to periodically check these Conditions for changes.
c) The Buyer shall not be entitled to assign or sub-contract any of its rights or the obligations under the Contract, without the prior written consent of the Company. The Company may assign, license or sub-contract all or any part of its rights or obligation under the Contract without the Buyer's consent.
d) Each Contract contains the whole agreement between the Company and the Buyer and supersedes all prior agreements, understandings and arrangements whether oral or in writing. All other understandings, agreements, warranties, conditions, terms or representations, whether express or implied, statutory or otherwise, are excluded to the fullest extent permitted by law
e) These Conditions and each Contract (including any associated non-contractual claims and disputes) shall be construed in accordance with and governed in all aspects by the Laws of England Law and the Buyer submits to the exclusive jurisdiction of the English courts.
f) The Company may perform its obligations either on its own or procure the performance of its obligations through its Group. These Conditions do not create any right enforceable by any person who is not a party, except that the terms of these Conditions may be enforced by any member of the Group subject to and in accordance with the terms of these Conditions and the Contracts (Rights of Third Parties) Act 1999.
12. Export Sales
Notwithstanding any other Condition, where Goods are sold for export outside the United Kingdom:
a) the Uniform Laws on International Sales Act 1967 shall not apply and the Company shall be under no obligation to give notice under Section 32(3) of the Sales of Goods Act 1979;
b) Section 26(3) of the Unfair Contract Terms Act 1977 shall apply and notwithstanding Condition 8.a) all liabilities for injury or death arising directly from the use of the Goods are expressly excluded;
c) Unless otherwise agreed in writing by the Company the currency will be pounds sterling and payment shall be by confirmed irrevocable letter of credit to be opened at a bank nominated by the Company at the Buyer's expense;
d) Delivery of Goods and prices quoted and set out in the Company's acknowledgement of order (if any) shall be ex works (as defined in INCOTERMS 2000); and
e) The Buyer shall be responsible for complying with any legislation or regulations governing the export of the Goods from the United Kingdom and governing the importation of the Goods into the country of destination and for the payment of any duties or taxes on them.
13. Interpretation
In these Conditions unless the context requires otherwise any reference to the singular shall include the plural and vice versa and the following expressions shall have the following meanings:
"Buyer" means the person, firm or company that has requested any Work whose details appear on the Order;
"Company" means Canterbury of New Zealand Limited;
"Conditions" means the standard terms and conditions of sale set out herein;
"Contract" means the contract between the Company and the Buyer which is made up of the Order and these Conditions for the supply of Work;
"Goods" means any goods supplied or to be supplied by the Company as specified in the Order;
"Group" means any company which a holding company or ultimate holding company of the Distributor and each of its subsidiary companies and its holding company's and ultimate holding company's subsidiary companies from time to time, "holding company" and "subsidiary" having the
meanings given to them in section1159 of the Companies Act 2006;.
"Insolvency" means in relation to an individual, partnership or company the appointment of any nominee, sequestrator, trustee, supervisor, receiver or liquidator (as relevant) pursuant to the Insolvency Act 1986 or the appointment of a manager or receiver (as relevant) pursuant the Law of
Property Act 1925 or the occurrence or sufferance of anything equivalent under any jurisdiction other than England or Wales or the calling of any meeting or the passing of any resolution whether formal or informal for the purpose of proposing the taking any of the foregoing
steps and "Insolvent" shall be construed accordingly;
"IPRs" means any intellectual property rights of any nature including without limit any and all inventions, patents, utility models, design rights, copyright, know how, trade secrets, confidential information, trade marks, service marks, trade names and goodwill;
"Order" means an order placed by the Buyer with the Company for Work;
"Services" means any services supplied or to be supplied to the Buyer by the Company or the Group as specified in the Order; and
"Work" means Goods and/or Services.
Canterbury of New Zealand Ltd
Terms and Conditions of Sale
These terms and conditions shall apply to all orders placed for Goods to be sold in the UK after 1 February 2027.
All business is carried on subject to the following terms and conditions of sale (“Terms”), except as varied by specific written agreement of Canterbury of New Zealand Ltd (“Company”). These Terms apply to every Contract (as defined below) between the Company and the customer for the supply of Goods (as defined below) in the UK, to the exclusion of any other terms, except to the extent expressly agreed in writing by 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.
The customer may only sell the Goods within the UK.
Order Placement
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”), at which point and on which date the Contract shall come into existence.
2. Orders are accepted only on the basis that these Terms (or varied as aforesaid) apply to the order. These Terms apply to the Contract to the exclusion of any terms which the customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, except where expressly agreed in writing by the Company. 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 Terms.
3. If the Company is unable or unwilling to accept the order of a customer, it will inform the customer of this and will not charge for the Goods. This might be because, for example, the Goods are out of stock, because of unexpected limits on the Company’s resources which could not reasonably be planned for, because the Company has identified an error in the price or description of the Goods or because it is unable to meet a delivery deadline the customer has specified in the request.
4. The Company reserves the right to amend any accidental error or omission on quotations, price lists, order forms, order acknowledgements, invoices or credit notes.
5. Any and all specifications, illustrations, colours, drawings and diagrams on the Company’s website(s), in its catalogues, trade literature and other published matters are of a generally informative nature and are approximate only and none of these form part of any Contract or give rise to any independent or collateral liability of whatsoever nature on the part of the Company and it shall be under no liability whatsoever for inaccuracies, changes or alterations in dimensions or measurements given, quoted or made by the Company.
6. The customer shall be solely responsible for ensuring that the Goods ordered are suitable for the customer’s intended use.
Delivery
7. Although all delivery dates stated by the Company are given in good faith, they are estimates only and time for delivery shall not be of the essence. The Company shall not be liable for any delay in delivery caused by a Force Majeure Event or the customer’s failure to provide adequate delivery instructions or other relevant instructions.
8. 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. Where the Company has expressly agreed in writing to supply Goods as part of a specified range, size-set, colour-set or assortment, the Company shall use reasonable endeavours to take such requirements into account when making any partial delivery. For the avoidance of doubt, this shall not prevent the Company from making partial deliveries in accordance with this clause 8, nor shall it entitle the customer to reject any Goods except to the extent expressly agreed in writing.
9. In respect of deliveries to the customer or customer’s nominated location, 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.
Price and Payment
10. 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 dispatch of such instalment. Such prices are exclusive of VAT.
11. Prices include delivery to the customer's single UK address, except that an additional charge for carriage of £15 will be charged extra on all orders of invoice value less than £300 (excluding VAT), or deliveries of fewer than twelve (12) pairs or pieces or of such value or quantities as notified by the Company to the customer from time to time.
12. Unless otherwise agreed in writing with the customer, including in any agreed customer-specific payment terms, the Company shall invoice the customer on or after dispatch of the Goods. The Company shall be entitled to invoice each instalment as and when each instalment is dispatched. Unless otherwise agreed, payment of all sums shall be made in Sterling and is due 30 days from the date of the relevant invoice. The Company may recover any sums due notwithstanding that title in any Goods has not passed to the customer.
13. If any payment is not made in full by the due date then the Company may set off any amount owing to it by the customer against any amount payable by the Company to the customer.
14. If the customer fails to make any payment due under the Contract by the due date, the Company may charge interest on the overdue amount under the Late Payment of Commercial Debts (Interest) Act 1998, together with any fixed compensation and reasonable recovery costs recoverable under that Act. Interest shall accrue on a daily basis from the due date until payment in full, whether before or after judgment.
15. The customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding, except as required by law.
16. 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.
Quality
17. Whilst every effort will be made to supply the Goods in accordance with any samples and/or agreed specifications, the Company reserves the right to make any changes to the specifications, designs, materials, finishes, packaging or labelling of the Goods which do not materially adversely affect the quality, performance, fitness for purpose or overall commercial functionality of the Goods, or which are required to comply with any applicable law, regulation, standard or other legal requirement.
18. Subject to clauses 19 (a) to 19 (e), the Company shall, at its option, replace the relevant Goods or refund the price of the relevant Goods (or the relevant part of the price) if the Goods are shown to the Company’s reasonable satisfaction:
(i) to have been defective in materials or workmanship at the time of delivery; or
(ii) to have been delivered in a quantity less than that stated in the Contract, provided that where the Company delivers up to and including 5% more or less than the quantity of Goods ordered, the customer shall not be entitled to reject the Goods but, upon notifying the Company of the discrepancy, the Company shall make a pro rata adjustment to the invoice for the Goods.
19. In order to benefit from the remedies in clause 18:
a. the customer shall inspect the Goods on delivery and shall notify the Company in writing within five (5) Business Days after delivery of any alleged defect, damage or shortfall in quantity which would be apparent on a reasonable inspection. If the customer fails to do so, the Goods shall be deemed to have been accepted and to conform with the Contract in all respects that would be apparent on a reasonable inspection;
b. when signing for delivery, the customer must clearly note on the delivery note any visible damage or shortages;
c. any claim for loss in transit or non-delivery must be notified in writing to the Company within 14 days after the scheduled date of the delivery, date of the advice note or invoice date (or such shorter period required by the third-party carrier (if any)) and, where reasonably requested by the Company, the customer shall also take reasonable steps to notify the carrier, otherwise the Goods are deemed to be delivered in accordance with the Contract;
d. where any defect would not have been apparent on a reasonable inspection on delivery, the customer must notify the Company in writing as soon as reasonably practicable after the defect becomes apparent and, in any event, no later than 180 days after delivery; and
e. the customer shall provide all information and assistance reasonably required by the Company to investigate any alleged defect and shall, if requested by the Company, permit the Company to inspect the Goods at any premises where they are located and return samples or affected Goods for inspection in accordance with the Company’s reasonable instructions. The customer shall bear the initial cost of return, but the Company shall reimburse reasonable return costs where the claim is accepted.
20. If the customer fails to give notice in accordance with clause 19, it will be deemed to have accepted the Goods and waives any right it may have to reject them. The customer shall not be entitled to reject the Goods if:
a. the customer or any third party makes any further use of the Goods after giving notice under clause 19;
b. the defect arises as a result of the Company following any drawing, design or specification supplied by the customer (if any);
c. the defect was caused by any act, omission or circumstance that takes place after delivery to the customer; and/or
d. the customer or any third party alters or repairs the Goods without the written consent of the Company.
21. Subject to clause 24, and to the extent the customer has complied with clause 19, clause 18 sets out the Company’s sole and exclusive liability, and the customer’s sole and exclusive remedies, in respect of the Goods, their quality, condition, description, fitness for purpose, performance, non-delivery, short delivery or otherwise.
22. To the fullest extent permitted by law and subject to clause 24, all conditions, warranties and other terms implied by statute, common law, custom, usage or otherwise are excluded from the Contract, including the implied terms as to satisfactory quality, fitness for purpose and correspondence with description.
23. Subject always to clause 24, and to the fullest extent permitted by law:
a. the Company shall not be liable to the customer, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise, for any:
i. loss of profits;
ii. loss of sales or business;
iii. loss of agreements or contracts;
iv. loss of anticipated savings;
v. loss of or damage to goodwill; or
vi. indirect or consequential loss; and
b. the Company’s total aggregate liability arising out of or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise, shall in no circumstances exceed the invoice value of the Goods to which the claim relates.
24. Nothing in these Terms shall exclude or limit the Company’s liability for:
a. death or personal injury caused by its negligence;
b. fraud or fraudulent misrepresentation;
c. breach of the implied terms as to title under section 12 of the Sale of Goods Act 1979; or
d. any other liability which cannot lawfully be excluded or limited.
25. No order may be cancelled and no Goods may be returned without the Company's prior written agreement except to the extent expressly agreed in writing, including any agreed cancellation tolerance applicable to forward orders. 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. Any agreement to accept returned Goods shall not constitute an admission that the Goods were defective or supplied in breach of Contract.
Title and Risk
26. The passing of title and risk in the Goods supplied by the Company shall be as follows:
a. Goods shall be at the customer's risk as soon as they are delivered to the customer's premises or other agreed destination and without limitation to the foregoing the customer shall be solely responsible for their custody and maintenance.
b. The legal and beneficial title to the Goods shall remain the Company’s property until the earlier of:
i. the Company receiving unconditional payment in full (in cash or cleared funds) for the Goods, in which case title to the Goods shall pass at the time of payment; or
ii. the customer reselling the Goods, in which case title to the Goods shall pass to the customer at the time specified in clause c below.
c. Subject to clause 26 (e) below, the customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Company receives payment for the Goods. However, if the customer resells the Goods before that time title to the Goods shall pass from the Company to the customer immediately before the time at which resale by the customer occurs.
d. Until the legal and beneficial title to the Goods passes to the customer in accordance with these Terms, the customer shall:
i. hold the Goods as bailee for the Company;
ii. keep the Goods labelled as belonging to the Company and separate and identifiable from all other goods in its possession;
iii. not remove, deface or obscure any identifying mark or packaging on or in relation to the Goods;
iv. give the Company such information relating to the Goods and/or the customer’s financial position as the Company may from time to time request;
v. immediately notify the Company if it becomes subject to any of the events listed in clause 29 (29.c)- (e);
vi. keep the Goods in satisfactory condition and 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, and the customer shall promptly provide a copy of such endorsement at the Company’s request.
e. If the customer does anything or fails to do anything which could cause it to become subject to any of the events listed in 29 or if the Company reasonably believes any such event is about to happen, then:
i. the customer’s right to possession of the Goods shall immediately cease;
ii. the customer’s right to resell the Goods pursuant to clause 26 (c) shall immediately cease; and
iii. in addition to any other right or remedy the Company may have, the Company may at any time require the customer to deliver up the Goods and, if the customer fails to do so promptly (or if the Company has any reason to believe the customer will not do so), enter any premises or land occupied or owned by the customer to remove the Goods.
f. If the customer fails to pay for any or all of the Goods in accordance with these Terms, then in addition to any other right or remedy the Company may have:
i. the Company shall have the power to resell 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
ii. 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.
27. The customer expressly shall not be entitled to re-sell the Goods as part of a sale of all or part of the customer’s business without the prior written consent of the Company.
28. Without prejudice to the equitable rules as to tracing, 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 therefore 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 monies or paid into any overdrawn bank account and shall at all times be identifiable as the Company’s monies.
Cancellation
29. The Company shall have the right to cancel all or any contracts with the customer or withhold delivery of any Goods if (or in the case of clauses (c)-(e), the Company reasonably believes that the customer is about to become subject to any of them):
a. the customer fails to pay any monies owing to the Company by the due date;
b. 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 7 days of that party being notified in writing to do so;
c. the customer compounds with or executes an assignment for the benefit of its creditors or takes any step or action in connection with, in the case of an individual, bankruptcy or, in the case of a body corporate, entering administration, provisional liquidation, liquidation (other than in relation to a solvent restructuring) or has a receiver, administrative receiver appointed over all or part of its assets, obtains a moratorium or has a third party levy distress on their property or propose terms or enters into a company voluntary arrangement, scheme of arrangement, restructuring plan or any other composition or arrangement with its creditors, whether formal or informal or is placed into any other formal insolvency process, or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
d. the customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;
e. the customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
30. Without prejudice to clause 29, if the Company withholds delivery of any Goods, or if at any time the Company reasonably has concerns about the customer’s actual or prospective ability to pay for the Goods or to perform its payment obligations under any Contract, the Company may require, as a condition of accepting any order, dispatching any Goods or resuming delivery, that the customer pays on a pro forma basis (including full pre-payment before dispatch) and/or provides such security for payment as the Company may reasonably require in respect of any order or further delivery.
31. On cancellation of the Contract for any reason the customer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the customer immediately on receipt.
32. Cancellation of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at cancellation, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of cancellation.
33. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after cancellation of the Contract shall remain in full force and effect.
Territory
34. The customer shall not solicit orders from or make any sales of the Goods to any person or organisation outside of the UK.
35. The customer shall refer to the Company all enquiries it receives for the Goods which relate to sales outside of the UK.
36. The customer shall not sell or cause or permit to be sold, directly or indirectly: (a) any Goods outside of the UK; or (b) any Goods where, to its knowledge, such Goods are intended for resale or distribution outside the UK. In particular (but without prejudice to the generality of the foregoing) the customer shall not engage in advertising aimed at any place outside of the UK or use any branch or distribution depot outside of the UK for the sale or marketing of the Goods.
Third-Party Online Marketplaces
The customer’s attention is in particular drawn to the provisions of clauses 37 to 46 (inclusive).
37. The customer shall resell the Goods through their own brick-and-mortar retail locations and/or proprietary online websites. Any other sales channels must be pre-approved in writing by the Company.
38. The customer shall not list, advertise, or resell the Goods on specific third-party online marketplaces, as set out in these Terms or by separate communication (“Restricted Marketplaces”), without prior written consent from the Company. This restriction applies to all forms of listings, including but not limited to direct sales, drop shipping, or fulfilment through third-party services. The Company will grant consent based on compliance with a defined set of marketplace criteria and may limit the number of marketplace sellers in its sole discretion.
39. The Company reserves the right to sell to specific third-party online marketplaces exclusively to itself or to allocate them exclusively to a third party (“Exclusive Customer Groups”), customer may not actively sell to any Exclusive Customer Group, passive sales remain allowed.
40. The Restricted Marketplaces and the Exclusive Customer Group consist of Amazon and all its locales. The list of Restricted Marketplaces and Exclusive Customer Groups can be amended by Company in its sole discretion with reasonable notice.
41. The restriction to sell on specific third-party online marketplaces and the restriction to actively sell to specific third-party online marketplace is referred to as “Marketplace Sales Restrictions”.
42. The customer shall pass on the Marketplace Sales Restrictions to any customers who purchase the Goods from the customer in their capacity as retailers (“B2B-Customers”) for resale as part of the customer’s overall terms with such B2B-Customers.
43. In the event that the Company has a reasoned suspicion that specific B2B-Customers of the customer are not complying with the Marketplace Sales Restrictions, the Company reserves the right to ask the customer for, and the customer agrees to provide to Company promptly, the strictly necessary information to identify such B2B-Customers and their sources of supply, and to enforce the requirements on such B2B-Customers. For the avoidance of doubt, information provided by the customer for this purpose will be used by the Company strictly for the defined scope of monitoring and enforcing compliance with the Marketplace Sales Restrictions.
44. The customer shall comply all times with clauses 37 to 46.
45. In the event of repeated or continued breach of the provisions in clauses 37 to 46, and where the breach has been notified in writing to the customer with reasonable notice to remedy the breach, the Company reserves the right to suspend or terminate the customer’s account and/or any current or future Contracts. Where the Company identifies a B2B-Customer in breach of the Marketplace Sales Restrictions, the Company may require that the customer ceases to accept orders of the Goods of such B2B-Customer.
46. Any unauthorised listing or sale of the Goods on a Restricted Marketplace, in breach of these Terms, shall be deemed a material breach of Contract and considered detrimental to the Company’s brand and business interests. The Company reserves the right to take appropriate remedial action in accordance with the terms of this Contract.
Force Majeure
47. 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 (a “Force Majeure Event”), 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, epidemic, pandemic, 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.
48. The affected party shall notify the other as soon as reasonably practicable and use reasonable endeavours to mitigate the effect of the Force Majeure Event. If the Force Majeure Event continues for more than 90 days, either party may terminate the affected Contract on written notice.
Intellectual Property
49. All intellectual property rights, including any trade marks, logos, trade names, branding, get up and related rights used on or in connection with the Goods or their packaging (together, the “Company IP”), shall remain the exclusive property of the Company or its licensors. Nothing in this Contract shall operate to assign or transfer any such rights to the customer. The Company grants to the customer a limited, non-exclusive, non-transferable and revocable licence for the duration of this Contract to use the Company IP solely for the purpose of promoting and selling the Goods in accordance with this Contract.
50. 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.
51. The Company IP applied to any of the Goods may be used in advertising material intended for use in retail outlets or in catalogues or online (but not in any domain name) for the purpose only of promoting the retail sale of the Goods concerned. Any such use shall be in accordance with the Company’s brand guidelines as notified from time to time.
52. Except as permitted by clause 51 above or by the applicable law, 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.
53. The licence granted under clause 49 shall automatically terminate on termination or expiry of this Contract, and the customer shall immediately cease all use of the Company IP.
General
54. Any part of these Terms which is void or unenforceable shall be deemed severable and shall not affect any other part of these Terms.
55. 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.
56. The customer shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery, anti-corruption, anti-slavery, sanctions, export control, data protection and modern slavery and shall act in accordance with the Company’s policies (found at https://pentlandbrands.com/reports-and-resources/) in this regard in all dealings with or on behalf of the Company, and shall maintain adequate policies and procedures designed to ensure such compliance. The customer shall, on reasonable request, provide information reasonably required by the Company to verify such compliance.
57. 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.
