Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday,
Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in
this document as amended from time to time.
Contract: the contract between the Supplier
and the Customer for the sale and purchase of the Goods in accordance with
Customer: the person or firm who purchases
the Goods from the Supplier.
Force Majeure Event: has the meaning
given in clause 11
Goods: the goods (or any part of them) set
out in the Order Acknowledgement Form.
Order: the Customer’s order for the Goods.
Order Acknowledgement Form: the form setting
out the Customer’s order including details of the description of the Goods,
quantity, and unit price.
Specification: any specification for the Goods,
including any related plans and drawings, that is supplied to the Supplier by
the Customer, or produced by the Supplier and agreed in writing by the
Supplier: WR Davies (Trading as SL Black Label) whose registered office is Unit 13 Finch Drive, Braintree, Essex, CM7 2SF (registered in England and Wales with company number 00576529).
Supplier’s Tolerance Allowances: any variation,
change, non-uniformity or non-material amendment to the design, colour,
construction or detail of the Goods, including dropped, skewed or missed
stitches, or change in placement of any design, stitch or print within a 20 mm
radius. Further detail of the Supplier’s tolerances will be supplied upon
- In these Conditions, the following rules apply:
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- A reference to a party includes its personal representatives, successors or permitted assigns.
- A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
- Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
- A reference to “writing” or “written” includes faxes and e-mails.
- BASIS OF CONTRACT
- These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer shall ensure that the terms of the Order and any relevant Specification as set out in the Order Acknowledgement Form are complete and accurate.
- The Order shall only be deemed to be accepted when the Supplier issues an Order Acknowledgement Form, at which point the Contract shall come into existence.
- The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or any other contract between the Supplier and the Customer for the sale of the Goods.
- A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 14 days from its date of issue.
- Once issued these Conditions will form the basis of the work conducted by the Supplier and goods produced and any instructions received from the Customer after issue of these Conditions will constitute acceptance of and agreement with these Conditions.
- The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
- The Supplier shall deliver the Goods to the location set out in the Order Acknowledgment Form or such other location as the parties may agree (“Delivery Location”) at any time after the Supplier notifies the Customer that the Goods are ready or such time as the parties may agree in writing.
- Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
- Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
- The Supplier will not be liable to the Customer for any delay or failure of any third party contractor to deliver the Goods on time or at all, but the Supplier will assist the Customer in recovering any Goods from a third party should they fail to be delivered, where the price is paid in full in advance.
- If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
- If the Customer fails to accept delivery of the Goods within 3 Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
- delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
- the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
- If 10 Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods at the Supplier’s sole discretion and, where the Price has already been paid by the Customer the Supplier shall refund the Price to the Customer.
- The Customer shall not be entitled to reject the Goods if the Supplier delivers the Goods in a quantity which is 5% more or less than the number specified within the Order but a pro rata adjustment shall be made to the Order invoice provided that the Customer provides notice to the Supplier that the wrong quantity of Goods was delivered within 3 Business Days of delivery.
- The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment. The Supplier and Customer will agree delivery by instalments in writing prior to completion of the first instalment of the Goods.
- The Supplier warrants that on delivery and for a period of 14 days from the date of delivery (“Warranty Period”), the Goods shall:
- conform in all material respects with the description of the Goods provided by the Supplier;
- materially meet the Specification subject to the Supplier’s Tolerance Allowances;
- be produced in accordance with the approved design, but the product itself and all features, branding, colours and accessories are subject to the Supplier’s Tolerance Allowances.
- The Customer acknowledges that the Goods may not be identical in size, colour, stitch or print detail throughout the Order, subject to the Supplier’s Tolerance Allowances, and may vary from the one-off sample provided to the Customer.
- Subject to clause 4.4, if:
- the Customer gives notice in writing to the Supplier during the Warranty Period that some or all of the Goods do not comply with the warranty set out in clause 4.1;
- the Supplier is given opportunity to examine the Goods; and
- the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost;
- the Supplier shall, at its sole discretion, repair or replace the defective Goods, or refund the price of the defective Goods in full strictly subject to the Supplier’s assessment of the quality of the Goods.
- The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in clause 4.1 if:
- the Customer makes any further use of such Goods after giving notice in accordance with clause 4.2;
- the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice;
- the overall finish of the Goods or any design or feature of the Goods deteriorates, fades, or warps over time as the goods are stored;
- the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
- there is variation between the one-off production sample provided and the Goods delivered to the Customer;
- the Customer alters or repairs such Goods without the written consent of the Supplier; or
- the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
- Except as provided in clause 4, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 4.1.
- Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
- These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
- All aspects relating to the goods are subject to clause 4.4.
- The Supplier reserves all rights to change, alter or discontinue the production of any style of product at any time, subject to fulfilment of any Order already placed at the time of the change or discontinuance.
- TITLE AND RISK
- The risk in the Goods shall pass to the Customer on completion of delivery.
- Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
- all other sums which are or which become due to the Supplier for sale of the Goods or any other products to the Customer.
- Until title to the Goods has passed to the Customer, the Customer shall:
- hold the Goods on a fiduciary basis as the Supplier’s bailee;
- store the Goods separately from all other goods held by the Customer so that they remain readily and easily identifiable as the Supplier’s property;
- not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
- maintain the Goods in reasonable condition and keep them insured against all risks for their full price from the date of delivery;
- notify the Supplier immediately if it becomes subject to any of the events listed in clause 7.2; and
- give the Supplier such information relating to the Goods as the Supplier may require from time to time.
- If the Customer does not pay the Supplier in full, they may only resell or use the Goods in the ordinary course of its business with the Supplier’s prior written consent.
- If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 7.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, the Supplier may enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
- Where the Goods have been irrevocably incorporated into another product, the Customer will remain liable in full for the price of the Goods.
- PRICE AND PAYMENT
- The price of the Goods shall be the price set out in the Order Acknowledgement Form, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
- The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
- any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
- any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
- any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
- Subject to clause 6.4 the price of the Goods is exclusive of the costs and charges of delivery and insurance of the Goods which shall be paid for by the Customer when it pays for the Goods.
- Clause 6.3 does not apply where the price of the Goods is £500 or greater in which case the price will include costs and charges of delivery, save where the Goods are delivered outside of the UK mainland or to the highlands of Scotland.
- The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
- If at any time HM Revenue and Customs shall determine that VAT is payable upon a supply which was previously considered or treated as VAT exempt, the Customer will account to the Supplier for the VAT sum within 5 Business Days of receipt of notice from the Supplier as to the VAT determination.
- The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
- Where credit references of the Customer have not been approved by the Supplier, payment for the Goods must be made in advance of delivery to the bank account nominated in writing by the Supplier.
- Subject to clause 6.7, the Customer shall pay the invoice in full and in cleared funds within 14 days of the date of the invoice, unless the Customer and Supplier agree alternative payment terms upon acceptance of the Order. Payment shall be made to the bank account nominated in writing by the Supplier, or if agreed, by cheque.
- Time of payment is of the essence.
- If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 2% per annum above Barclay’s Bank PLC base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
- The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
- If the Customer cancels an Order during the course of production, the Customer will remain liable to the Supplier for the purchase price in full.
- CUSTOMER’S INSOLVENCY OR INCAPACITY
- If the Customer becomes subject to any of the events listed in clause 7.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
- For the purposes of clause 7.1, the relevant events are:
- the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
- the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
- (being an individual) the Customer is the subject of a bankruptcy petition or order;
- a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 7 days;
- (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
- (being a company) a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
- any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 7.2(a) to clause 7.2(g) (inclusive);
- the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; or
- the financial position of the Supplier deteriorates to such an extent that in the opinion of the Customer the capability of the Seller adequately to fulfil its obligations under the Contract has been placed in jeopardy.
- (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
- LIMITATION OF LIABILITY
- Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
- death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
- fraud or fraudulent misrepresentation; or
- breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
- defective products under the Consumer Protection Act 1987; or
- any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
- Subject to clause 8.1:
- the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with the Contract (including any losses that may result from a deliberate breach of the Contract by the Supplier, its employees, agents or subcontractors);
- the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach of the Contract by the Supplier, its employees, agents or subcontractors shall not exceed 100% of the price of the Goods as set out in the Order Acknowledgement Form.
- WARRANTIES AND INDEMNITY
- The Customer warrants that the use of any design provided by the Customer to be included on any cap or garment will not infringe the intellectual property rights of any third party.
- If the Customer is using a design produced, created or designed by a third party the Customer warrants to the Supplier that they have every permission, licence or agreement necessary to use and recreate the design.
- The Customer shall indemnify and keep indemnified the Supplier in full and on demand from and against all and any losses, costs, claims, liabilities, damages, demands and expenses suffered or incurred by the Supplier or for which the Supplier may become liable, with respect of any intellectual property infringement claim as set out in clause 9.1.
- Any samples provided to the Customer by the Supplier are not returnable.
- The Customer shall pay for any sample provided to it by the Supplier in accordance with the provisions of clause 6.
- The samples provided to the Customer may vary from the actual Goods delivered in accordance with the Supplier’s Tolerance Allowances and are intended as an example only.
- FORCE MAJEURE
- Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
- By submitting files, artworks, designs and imagery, the customer warrants that they are in possession of all required licences and permissions, to recreate the elements submitted. The customer is responsible for obtaining all required permissions for use of their submitted material and its application to the product(s) which are being purchased from the supplier. The customer will meet all claims, expenses, damages and all legal fees arising from goods which are produced without prior permissions.
- Assignment and
- The Supplier may at
any time assign, transfer, charge, subcontract or deal in any other manner with
all or any of its rights or obligations under the Contract.
- The Customer may
not assign, transfer, charge, subcontract or deal in any other manner with all
or any of its rights or obligations under the Contract without the prior
written consent of the Supplier.
- Any notice or other
communication given to a party under or in connection with the Contract shall
be in writing, addressed to that party at its registered office (if it is a company)
or its principal place of business (in any other case) or such other address as
that party may have specified to the other party in writing in accordance with
this clause, and shall be delivered personally, sent by pre-paid first-class
post, recorded delivery, commercial courier, fax or e-mail.
- A notice or other
communication shall be deemed to have been received: if delivered personally to
the Customer, when left at the address referred to in clause 12.2(a); if sent
by pre-paid first-class post or recorded delivery to the Customer, at 9.00 am
on the second Business Day after posting; if delivered by commercial courier to
the Customer, on the date and at the time that the courier’s delivery receipt
is signed; or, if sent by fax or e-mail, one Business Day after transmission.
- Service of any
notice to the Supplier will only occur upon actual receipt.
- The provisions of
this clause shall not apply to the service of any proceedings or other
documents in any legal action.
- If any court or
competent authority finds that any provision of the Contract (or part of any
provision) is invalid, illegal or unenforceable, that provision or
part-provision shall, to the extent required, be deemed to be deleted, and the
validity and enforceability of the other provisions of the Contract shall not
- If any invalid,
unenforceable or illegal provision of the Contract would be valid, enforceable
and legal if some part of it were deleted, the provision shall apply with the
minimum modification necessary to make it legal, valid and enforceable.
- A waiver of any
right or remedy under the Contract is only effective if given in writing and
shall not be deemed a waiver of any subsequent breach or default. No failure or
delay by a party to exercise any right or remedy provided under the Contract or
by law shall constitute a waiver of that or any other right or remedy, nor
shall it preclude or restrict the further exercise of that or any other right
or remedy. No single or partial exercise of such right or remedy shall preclude
or restrict the further exercise of that or any other right or remedy.
- A person who is not
a party to the Contract shall not have any rights under or in connection with
- Any variation to
the Contract, including the introduction of any additional terms and
conditions, shall only be binding when agreed in writing and signed by the
- Governing law and
- The Contract, and
any dispute or claim arising out of or in connection with it or its subject
matter or formation (including non-contractual disputes or claims), shall be
governed by, and construed in accordance with, English law, and the parties
irrevocably submit to the exclusive jurisdiction of the courts of England and