1.1. This document sets out the terms (General Terms) which apply to the sale of Products (including any associated delivery or fitting services, if offered) by Supplier to Customer, and their onwards sale.
1.2. The parties’ agreement is made up of (i) these General Terms (and the documents linked in it); (ii) the Quotation; and (iii) any other written document signed and agreed in writing between the parties. Together the above documents shall constitute and be known as the Agreement and apply to the contract between the parties to the exclusion of any other terms that Customer may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.3. When construing the meaning of the Agreement, the documents listed in clause 1.2 shall be interpreted in a reverse order of priority in the event of any inconsistency or conflict, with documents appearing later in the list taking priority over documents appearing earlier in the list.
1.4. These General Terms are published on Supplier’s website. Customer should print or save a copy of these General Terms for its records.
1.5. The Agreement shall only be deemed binding upon Supplier’s signature of, or email agreement to, the Quotation at which point, and on which date, the Agreement shall come into existence.
1.6. Supplier may amend these General Terms from time to time as set out in clause 15.10. This version one of these General Terms was most recently updated on 21st June 2020.
1.7. Any Quotation issued by Supplier shall not constitute an offer and shall only be valid for a period of 30 days from the date of issue, if not agreed and returned by Customer.
1.8. Any order placed by you shall only be deemed to be accepted upon our generation of an order acknowledgement which we provide to you (following your offer on the terms of the Quotation), or, if none has been provided, where we otherwise provide the Products, at which point the Agreement shall come into existence (Commencement Date).
1.9. Following the Commencement Date, no order may be cancelled unless permitted under the terms of our Returns Policy.
1.10. Any typo, clerical or other error or omission in any sales literature, estimate, quotation, price list, acceptance of offer, invoice or other document or information issued by Supplier shall be subject to correction without any liability on Supplier’s part.
2.1. In the Agreement (including the Returns Policy and Warranty Terms), unless the context otherwise requires:
Affiliate means any person who directly or indirectly Controls or is Controlled by or is under common Control with either party;
Agreement has the meaning given in clause 1.2;
Business Day means any day other than a Saturday, Sunday or public holiday in Northern Ireland when banks in Belfast are open for business;
Charges means the agreed charges for the Products specified in (or by reference to) the Quotation or otherwise agreed between the parties;
Control means the ability to direct the affairs of another, whether by virtue of the ownership of shares, contract or otherwise;
Customer means the distributor identified in the relevant Quotation;
Customer Complaint means any customer complaint relating to the Products for which Supplier is responsible under the Agreement;
Force Majeure means, in relation to either party, any circumstances beyond the reasonable control of that party (including, without limitation, any strike, customs delays, unavailability of raw materials, disease, quarantine, lock-out or other form of industrial action but excluding lack of available funds);
Intellectual Property means any patents, moral rights, unregistered design rights, copyright, registered design rights, goodwill, registered or unregistered trade marks and all other industrial or intellectual property rights of any nature however, and wherever, arising;
Payment Terms has the meaning given to it in the Quotation;
Products has the meaning given to it in the Quotation;
Prices has the meaning given to it in the Quotation;
Returns Policy means the Supplier’s return and refunds policy available at https://mylifebathrooms.com/return-refund-policy/. In the event of any conflict or inconsistency between these General Terms and the Returns Policy the former shall take precedence over the latter;
Reserved Territories means all countries or areas other than the Territory, which comprise the countries or areas in respect of which Supplier has appointed another exclusive Customer and the countries or areas which Supplier has reserved to itself;
Restricted Information means, in relation to Supplier, any any or all information of a confidential nature (whether in oral, written or electronic form and whether or not expressed to be confidential) including trade secrets and information of commercial value known and belonging to Supplier and concerning its business, suppliers, customers, products or services and any other information which Customer knows or is notified or has reason to believe is confidential to Supplier, including, without limitation, the non-public terms of the Agreement;
Supplier means MyLife Bathrooms Limited, a company incorporated in Northern Ireland under registered number NI617167;
Specification means Supplier’s general written specifications for the Products, including any relevant plans or drawings (if any);
Territory means UK and Ireland only, unless expressly indicated otherwise on a relevant Quotation;
Trade Marks means: (a) the trade marks registered in the name of Supplier of which particulars are given in the Quotation; and (b) such other trade marks as are used by Supplier on or in relation to the Products at any time during the Agreement; and
Warranty Terms means the Supplier’s warranty terms available at https://mylifebathrooms.com/warranty-terms/. In the event of any conflict or inconsistency between these General Terms and the Warranty Terms the former shall take precedence over the latter.
2.2. Words in the singular include the plural and those in the plural include the singular.
2.3. Any reference in the Agreement to “writing” or related expressions includes e-mail but not fax.
2.4. (a) words in the singular shall include the plural and in the plural shall include the singular; (b) a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time; and (c) any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.5. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
2.6. The headings in the Agreement are for convenience only and shall not affect its interpretation.
2.7. Any reference to a clause shall be construed as a reference to a clause these General Terms.
2.8. Any obligation on a party not to do something includes an obligation not to allow that thing to be done, and an obligation to do something includes an obligation to use best endeavours to procure that thing shall be done.
3. SALE OF PRODUCTS
3.1. In consideration for payment by Customer of the Charges, Supplier shall sell to Customer the Products set out within any relevant Quotations, on the basis set out in such Quotations.
3.2. Customer shall follow any processes for raising orders as are reasonably requested by Supplier from time to time.
3.3. Supplier reserves the right to amend Products and Specifications from time to time, where and statutory or legal requirement relating to the Products has changed or otherwise if reasonably required, where the change does not substantially impact the fundamental nature or quality of the Products .
3.4. Supplier shall use reasonable endeavours to ensure that the benefit of any third-party warranties applicable to any Products Supplier supplies is passed on to Customer.
3.5. Customer acknowledges that it has assessed for itself the suitability of the Products for its requirements. Supplier does not warrant that the Products will be suitable for such requirements, nor that any use of the Products will be uninterrupted or error free. The Products are (generally, but not exactly) as described in the relevant Specification.
3.6. Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform its duties and obligations under the Agreement and that those persons signing the Quotation, if any, are duly authorised to bind the party for whom they sign.
4. PERMISSION TO DISTRIBUTE
4.1. Supplier agrees to permit Customer to distribute such Products for resale directly to consumers (unless otherwise permitted in writing) only on a non-exclusive basis within the Territory only for the term of the Agreement, and provided always that Customer agrees to act subject to the restrictions of the Agreement. Supplier’s warranties shall not apply where the Products are resold outside the UK or Ireland.
4.2. Supplier’s recommended retail prices are as included in the Quotation, and notified to Customer in writing from time to time.
4.3. For the duration of the Agreement Customer shall be entitled to describe itself as an “Authorised Customer” for the Products, but shall not be and shall not hold itself out as being Supplier’s agent for sales of the Products or as being entitled to bind Supplier in any way. Customer shall not pledge Supplier’s credit, give any condition or warranty on Supplier’s behalf, make any representation on Supplier’s behalf or commit the Supplier to any contracts.
4.4. Where Supplier receives sales enquiries from businesses it shall forward these to Customer.
4.5. Customer shall not, without Supplier’s prior written consent, make any promises or guarantees about the Products beyond those contained in the promotional material supplied by Supplier.
4.6. Unless consented to in writing in advance by Supplier, Customer shall refrain from appointing or using sub-Customers for the sale of the Products. Customer may withhold its consent to the appointment or use of any sub-Customer for any reason or for no reason. In the event that Supplier consents to the use of any such sub-Customers, Customer agrees that it will obligate such sub-Customers to be bound by all of the same terms and conditions to which Customer is bound hereunder and to be subject to the same restrictions contained in the Agreement to which Customer is subject, and Customer agrees to cause such sub-Customers to comply with such terms and conditions. Customer shall not be relieved of any of its duties or obligations hereunder by reason of its appointment or use of a sub-Customer. Upon termination of the Agreement, Customer will cause all agreements concerning the Products it may have with its sub-Customers to be simultaneously terminated, without any claim or recourse against Supplier.
4.7. Customer shall also maintain at all times within the Territory and at its own expense facilities and personnel, including trained sales personnel, adequate to demonstrate and exhibit the Products and for the promotion and solicitation of sales of Products, include the Products in its catalogs and other promotional materials (as applicable). Customer shall furnish Supplier with an annual business plan with respect to the marketing and sale of Products, together with semiannual reports describing specific promotional activities (trade shows, advertising, sales programs) undertaken during the reporting period. Customer shall also provide Supplier with semi-annual (or on such other frequencies as Supplier may reasonably request) information on inventory levels, competitive products and such other information concerning the marketing and sale of Products as Supplier may reasonably request.
4.8. Supplier shall not be under any obligation to continue the manufacture of all or any of the Products, and shall be entitled to make such alterations to the specifications of the Products as it may think fit provided that Supplier shall notify Customer in writing not less than three months before any change is made to the formulation, specification or presentation of any Product or any change is made in the products that are included within the Product range.
4.9. Supplier shall, in respect of each order for the Products to be supplied under each Quotation, be responsible for: (a) ensuring the accuracy of the order; (b) ensuring compliance of the Products (including any Product labelling) with all legislation generally legally applicable to product manufacturers in the UK and Ireland, provided that Customer shall be responsible for, and bear the cost of, otherwise ensuring compliance of the Products and their sale within the Territory with all relevant law, including compliance with all registrations, licences, approvals and permissions required to sell the Products outside UK and Ireland (if permitted in the relevant Quotation); and (c) obtaining any necessary certificates of origin or other requisite export related documents, regarding statutory regulation for export of the Products from the location in which they are manufactured, provided that Customer shall be liable and reimburse Supplier for the costs thereof. Customer shall be liable and responsible for obtaining all permits or consents, and complying with any other legal requirements necessary for importing the Products into the markets outside the UK and Ireland and selling them through the Market therein (save to the extent such responsibility is assumed by Supplier as outlined in this clause above).
5. DELIVERY OF THE PRODUCTS
5.1. Supplier shall use reasonable endeavours to deliver the Products to the location set out in the Quotation or such other location as the parties may agree (Delivery Location) at the time agreed between the parties by the method specified in the relevant Quotation (which unless specified otherwise shall be DAP per Incoterms 2010©, which shall be reflected by default in all pricing). However, timing of performance of Supplier’s obligations under the Agreement shall not be of the essence, and Supplier shall not be liable for delays, including those attributable to third parties or to Customer’s or its employees’, agents’ or contractors’ acts or omissions, including failure to provide Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products, or failure to take delivery of the Products.
5.2. Delivery of the Products shall be completed on the Products’ arrival at the Delivery Location (which, if Customer arranges for collection, shall be deemed to have occurred within 5 Business Days of Supplier notifying Customer the Products were ready for collection).
5.3. Supplier may deliver the Products by instalments. Any delay in delivery or defect in an instalment shall not entitle Customer to cancel any other instalment.
5.4. If Customer fail to accept or take delivery of any Products within 5 Business Days of Supplier notifying Customer that the Products are ready, then except where such failure or delay is caused by Supplier’s failure to comply with Supplier’s obligations under the Agreement then delivery shall be deemed to have taken place at 9.00 am on the fifth Business Day following the day on which Supplier notified Customer that the Products were ready, and Supplier reserve the right to either store the Products until delivery takes place, and charge Customer for all related costs and expenses (including insurance), or to cancel the Agreement.
5.5. Risk of damage to or loss of such Products shall pass to Customer at the point of delivery in accordance with clause 5.2.
5.6. Title to any Products shall not pass until the Products are paid for in full. Until title to the Products has passed to Customer, Customer shall: (i) hold the Products on a fiduciary basis as Supplier’s bailee and not resell them or make them subject to any pledge or charge by way of security in respect of any indebtedness; (ii) not remove, deface or obscure any identifying mark or packaging on or relating to the Products; (iii) maintain the Products in satisfactory condition; (iv) notify Supplier immediately if Customer become subject to any of the events listed in clause 15.3; and (v) give Supplier such information relating to the Products as Supplier may require from time to time.
5.7. If, before title to the Products passes to Customer, Customer become subject to any of the events listed in clause 15.3, or Supplier reasonably believe that any such event is about to happen and notify Customer accordingly, then, provided the Products have not been resold, without limiting any other right or remedy Supplier may have, Supplier may require Customer to deliver up the Products and, if Customer fail to do so promptly, enter any premises where the Products are stored in order to recover them.
5.8. Products will be deemed accepted unless rejected in accordance with Supplier’s Refund Policy.
6. PAYMENT FOR THE PRODUCTS
6.1. The Charges set out within the Quotation apply only to the provision of the Products set out therein. If no price is quoted, the price for any specified Products shall be per Supplier’s published price list as at the date of provision of the Products. All Charges for Products quoted within the relevant Quotation shall be inclusive of all costs and charges of packaging, insurance, transport of the Products by the means specified in the Quotation, unless specified otherwise in the Quotation.
6.2. Where we incur any additional cost in respect of the supply of the scoped Products beyond the Charges quoted in the Quotation due any factor beyond our control (including FX fluctuations, increases in import duties/taxes, increases in labour, materials and other manufacturing costs) we shall absorb those costs up to a maximum of 110% of the total cost value of the Products in question quoted in the relevant Quotation. Thereafter, additional Charges may apply, which we will advise you of in writing. Any additional Charges required shall be calculated at the additional costs payable by us.
6.3. Where there is any request by Customer to change the delivery date(s), quantities, Specifications of or types of Products ordered, additional Charges may apply, which Supplier will advise Customer of in writing.
6.4. All Products to be supplied by Supplier under the Agreement shall be sold on a pro forma basis by the payment methods specified on the relevant Quotation (or on the basis of credit where offered to Customer by Supplier at any time, which credit can be withdrawn at any time on notice). If sold pro-forma, Products will not be dispatched until payment has been received (in cash or cleared funds) into Supplier’s account.
6.5. If Customer is offered credit, then all invoices will be raised on a monthly basis (regardless of whether the relevant Products have been dispatched or collected). Customer must pay all Charges set out within each invoice in full and cleared funds within 30 calendar days of the date of the invoice.
6.6. Time for payment shall be of the essence of the Agreement.
6.7. If Customer fails to pay the Charges under any Quotation by the due date, Supplier shall be entitled (without prejudice to any other right or remedy it may have) to cancel or suspend any further delivery of the Products to Customer under any Quotation, and to charge Customer any additional costs it incurs as a result.
6.8. All Charges are exclusive of any applicable value added or any other sales tax, and any other sales or similar taxes, custom duties, clearance charges, brokers’ fees, levies, assessments and other fees of any kind imposed on the purchase or import of the Products, withholding taxes or similar charges, for which Customer shall be solely responsible. Where any party is required by the Agreement to reimburse or indemnify any other party for any cost or expense, that first party shall reimburse or indemnify the other party for the full amount of the cost or expense, including any VAT on that amount, except to the extent that the other party is entitled to credit or repayment for that VAT from any relevant tax authority.
6.9. All payments shall be made by Customer in currency denominated in the Quotation by bank transfer to such bank account as Supplier may from time to time notify in writing to Customer.
6.10. Any and all expenses, costs and charges incurred by Customer in the performance of its obligations under the Agreement shall be paid by Customer, unless Supplier has expressly agreed in advance in writing to pay such expenses, costs and charges.
6.11. All Charges due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding except as required by law. Supplier may, without limiting Supplier’s other rights or remedies, set off any amount owing to Customer by Supplier against any amount payable by Supplier to Customer.
6.12. Interest shall be chargeable on any Charges overdue at the rate of 15% above the base rate of HSBC Bank plc as applying from time to time to run from the due date for payment until receipt by Supplier of the full amount due whether or not after judgement and without prejudice to any of Supplier’s other rights or remedies.
6.13. Where Customer disputes any invoice, it must notify Supplier within five Business Days in writing. Supplier shall provide all such evidence as may be reasonably necessary to verify the disputed invoice, and the parties shall negotiate in good faith to attempt to resolve the dispute promptly. Supplier reserve the right not to supply any Products to Customer while such a dispute is ongoing. Where only part of an invoice is disputed, Customer shall pay the undisputed amount on the due date for payment. If the parties have not resolved the dispute within 30 days of Customer’s notice of dispute, Supplier reserve the right to terminate the Agreement, whereupon all Charges payable under the Agreement shall become immediately due and payable.
7. MARKETING OF THE PRODUCTS
7.1. Customer shall use all reasonable endeavours to promote the sale and distribution of the Products throughout the Territory.
7.2. Customer shall, at all times during the term of the Agreement: (a) employ a sufficient number of suitably qualified personnel to ensure the proper fulfilment of Customer’s obligations under the Agreement; (b) maintain, on its own account, an inventory of the Products at levels which are appropriate and adequate for Customer to meet all customer delivery requirements for the Products throughout the Territory; (c) allow Supplier, on reasonable notice, access to its accounts and records relating to the Products for inspection; (d) keep all stocks of the Products which it holds in conditions appropriate for their storage, and provide appropriate security for the Products, all at its own cost; and (e) inform Supplier as soon as reasonably possible of any changes in ownership or Control of Customer, and of any change in its organisation or method of doing business that might be expected to affect the performance of Customer’s duties in the Agreement.
7.3. Customer shall: (a) be responsible for advertising and promoting the Products in the Territory (but Customer shall not use any advertising materials or promotional literature without Supplier’s prior written consent). Customer must adhere at all times to Supplier’s marketing bible and design guidelines or requirements provided from time to time; (b) display advertising and other signs provided by Supplier; (c) observe all directions and instructions given to it by Supplier for promotion and advertisement of the Products; and (d) not make any written statement as to the quality or manufacture of the Products without the prior written approval of Supplier.
7.4. In connection with the promotion and marketing of the Products Customer shall: (a) make clear, in all dealings with customers and prospective customers, that it is acting as a Customer of the Products on its own account and not as agent of Supplier; (b) comply with all legal requirements from time to time in force relating to the storage and sale of the Products in the Territory; (c) at the request of Supplier provide to it copies of such sales aids, including (without limiting the foregoing) catalogues, sales brochures and sales manuals, as relate to the Products; and (d) use in relation to the Products only such advertising, promotional and selling materials as are approved in writing by Supplier (including any images of the Products – permission to use which may be withdrawn by Supplier at any time).
7.5. Customer shall be responsible for obtaining any necessary import licences or permits necessary for the entry of the Products into the Territory, or their delivery to Customer.
7.6. Supplier reserves the right to contact Customer’s customers to obtain customer feedback or similar and Customer shall, upon request, provide Supplier with all information necessary for that purpose.
8. SUPPORT AND TRAINING
8.1. Supplier shall from time to time provide Customer free of charge with such templates for artwork for catalogues, brochures pos and up to date information concerning the Products as Supplier may consider appropriate or as Customer may reasonably require in order to assist Customer with the sale of the Products in the Territory, and Supplier shall endeavour to answer as soon as practicable any technical enquiries concerning the Products which are made by Customer or its customers. Any and all artwork required by Customer shall be produced at its own cost, using the templates provided by Supplier and in strict conformity with Supplier’s marketing bible and design guidelines, as set out on Supplier’s website.
8.2. Following the Commencement Date, Supplier shall provide free of charge and based in the UK a single period of training for Customer in Product knowledge and application. All travel, subsistence and other costs incurred by Customer in participating in the training are Customer’s responsibility. Any other training required by Customer shall be agreed in advance by the parties, including as to costs.
8.3. Customer shall participate in such training as Supplier deems to be necessary and must achieve official certification of competency from Supplier prior to commencement of business in the Territory. For the avoidance of doubt, Customer shall not be entitled to sell, supply or otherwise distribute any Products in the Territory until it receives official certification of competency from Supplier.
9. INTELLECTUAL PROPERTY
9.1. Any Intellectual Property which the relevant party to the Agreement can demonstrate are already held by it at the date of the Agreement or which at any time after the date of the Agreement have been acquired or developed by it independently of the provision of the Products, and of the use of any Confidential Information of the other party, and all modifications thereto and derivative versions thereof created at any time (Background IP) shall remain the sole property of that party. For the avoidance of doubt, all Intellectual Property subsisting in the Territory in respect of the Products, including pictures, designs or Specifications of or for the Products, and applications for any of the foregoing, shall be the Background IP of Supplier.
9.2. Any Intellectual Property, other than Background IP, created or developed by Supplier in the course of provision of the Products (Foreground IP) shall be Supplier’s sole property.
9.3. Supplier grants Customer a non-exclusive, non-transferable, non sub-licensable, revocable, right to use the Trade Marks and such other Background IP as it specifically provides to Customer for such purposes (for example Product images), in the Territory on or in relation to the Products for the purposes only of exercising its rights and performing its obligations under and for the duration of the Agreement and, Customer shall not so authorise any other person, firm or company. Customer shall ensure that each reference to and use of any of the above Background IP by it is in a manner from time to time approved by Supplier and accompanied by an acknowledgement, in a form approved by Supplier, that the same is a trade mark, registered trade mark or copyright (as appropriate) of Supplier.
9.4. Customer shall not: (a) make any modifications to the Products, their packaging or labelling without Supplier’s prior written consent; (b) alter, remove or tamper with any Trade Marks or Product images, numbers, or other means of identification used on or in relation to the Products; (c) use any of the Trade Marks in any way which might prejudice their distinctiveness or validity or the goodwill of Supplier therein; (d) use in relation to the Products any trade marks or images other than the approved Background IP of Supplier without obtaining the prior written consent of Supplier; or (e) use in the Territory any trade marks or trade names so resembling any trade mark or trade names of Supplier as to be likely to cause confusion or deception; and (f) except as provided in clause 9.1 Customer shall have no rights in respect of any trade names, images, or Trade Marks used by Supplier in relation to the Products or of the goodwill associated therewith, and Customer hereby acknowledges that, except as expressly provided in the Agreement, it shall not acquire any rights in respect of any images, trade names or Trade Marks and that all such rights and goodwill are, and shall remain, vested in Supplier.
9.5. Customer shall, at the expense of Supplier, take all such steps as Supplier may reasonably require to assist Supplier in maintaining the validity and enforceability of the Intellectual Property of Supplier during the term of the Agreement.
9.6. Without prejudice to the right of Customer or any third party to challenge the validity of any Intellectual Property of Supplier, Customer shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with any Intellectual Property of Supplier and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect or character.
9.7. Customer shall promptly and fully notify Supplier of any actual, threatened or suspected infringement in the Territory of any Intellectual Property of Supplier which comes to Customer’s notice, and of any claim by any third party so coming to its notice that the importation of the Products into the Territory, or their sale in the Territory, infringes any rights of any other person, and Customer shall at the request and expense of Supplier do all such things as may be reasonably required to assist Supplier in taking or resisting any proceedings in relation to any such infringement or claim. Supplier shall have the sole and exclusive right to take or control any such proceedings, but shall be under no obligations to initiate proceedings.
9.8. Supplier makes no representation or warranty as to the validity or enforceability of its Background IP nor as to whether they infringe any intellectual property rights of third parties in the Territory.
9.9. Customer acknowledges and agrees that any and all goodwill or reputation generated by Customer’s use of Supplier’s Intellectual Property shall vest solely in Supplier. Supplier is not granting any right, title or interest in same other than the limited authorisation set out in clause 9.1.
10.1. Customer shall during the continuance of the Agreement and after its termination: (a) keep all Restricted Information confidential and accordingly not to disclose any Restricted Information to any other person; and (b) not use any Restricted Information for any purpose other than the performance of its obligations under the Agreement. The obligations in this clause shall not apply to Restricted Information which becomes public other than through Customer.
11.1. When Customer receives a customer complaint regarding the Product (which is covered by the warranties in the Agreement), Customer shall notify Supplier. For complaints involving customer injury, Supplier shall use its best efforts to give such notice to the other party orally within twenty-four (24) hours after receiving notice of the complaint or within twenty-four (24) hours after the event first reaches the department of Supplier that is responsible for handling customer complaints. Supplier will confirm such notice by e-mail within 24 hours after giving oral notice. Complaints without customer injury shall be communicated by Supplier to the other party within three (3) days after notice of the complaint. The parties shall cooperate with each other concerning the investigation of complaints, including providing further information about specific complaints, on request. Each party agrees to use its best efforts to supply the other with information reasonably requested by such other party in connection with this section.
12.1. Save as provided in the Agreement, Supplier warrants to Customer that all Products supplied under the Agreement will be of reasonably satisfactory quality and will materially comply with their applicable Specification for the periods specified or referenced in the Warranty Terms, in each case running from the date of manufacture, subject to any exclusions in the Returns Policy or Warranty Terms. Customer must notify Supplier in writing of any claim under the relevant warranties in accordance with any warranty claim process requirements specified in the Warranty Terms and Refund Policy and obtain/provide all such evidence as Supplier reasonably requires of the relevant claim.
12.2. To the extent permitted by law, Customer’s rights and remedies in respect of any rejected Products or warranty claims shall be exclusively as outlined in the Returns Policy and Warranty Terms.
12.3. We reserve the right to charge for Product warranty call-outs or investigations where the Products are not covered.
12.4. Customer undertakes to maintain appropriate, up-to-date and accurate records to enable the immediate recall of any Products or batches of Products from the retail or wholesale markets. These records shall include records of deliveries to customers (including batch numbers, delivery date, name and address of customer, telephone number and e-mail address).
12.5. Customer shall, at Supplier’s cost, give any assistance that Supplier shall reasonably require to recall, as a matter of urgency, Products from the retail or wholesale market.
13. LIMITATION OF LIABILITY – CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
13.1. Nothing in the Agreement shall exclude or limit Supplier’s liability for: (i) death or personal injury caused by Supplier’s negligence, or the negligence of Supplier’s employees, agents or subcontractors; (ii) fraud or fraudulent misrepresentation; or (iii) for any other liability which cannot be excluded or limited under applicable law.
13.2. Subject to clauses 13.1 and 13.3, Supplier’s total liability arising out of or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed a total aggregate amount equal to 100% of the Charges paid to Supplier pursuant to the Agreement, in respect of the Products the subject of the claim (in that specific batch or delivery only), in the period of 12 months considered retrospectively from the date the cause of action arose.
13.3. Subject to clause 13.1, Supplier shall not in any circumstances be liable to Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit, loss of contracts, loss of business or business opportunities, loss of production, loss of turnover or revenue, loss of availability, loss of anticipated savings, wasted expenditure, loss of reputation, loss of goodwill or loss of use suffered or incurred directly or indirectly by Customer, or for any consequential, indirect or special loss or damage howsoever arising and of whatsoever nature (even if Supplier had been advised of the possibility of Customer incurring the same) or any punitive or exemplary damages.
13.4. Subject to clause 13.1, the express terms of the Agreement shall apply in place of all warranties, conditions, terms, representations, statements, undertakings and obligations whether expressed or implied by law, custom or otherwise, all of which are excluded to the fullest extent permitted by law.
13.5. Supplier shall have no liability to Customer to the extent that such liability would not have arisen but for Customer’s acts, omissions or default.
13.6. Supplier may, during the supply of the Products, make statements about or recommendations of third party products or services. Supplier give no warranty in relation to such products or services, and Customer shall rely solely on the warranties and remedies provided by any such third party with whom Customer may contract.
14. FORCE MAJEURE
14.1. If either party is affected by Force Majeure it shall forthwith notify the other party of the nature and extent thereof.
14.2. Neither party shall be deemed to be in breach of the Agreement, or otherwise be liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations under the Agreement to the extent that such delay or non-performance is due to any Force Majeure of which it has notified the other party; and the time for performance of that obligation shall be extended accordingly, provided that the affected party uses commercially reasonable efforts to avoid and remove the causes of non-performance.
15. DURATION AND TERMINATION
15.1. The Agreement shall come into force on the Commencement Date for the first Quotation and, subject to any earlier termination in accordance with the terms of the Agreement, shall continue in force so long as Customer continues to order Products from Supplier for resale, unless earlier terminated in accordance with its terms.
15.2. Supplier may terminate the Agreement at any time, without cause and without liability, by giving written notice to Customer.
15.3. Either party shall be entitled forthwith to terminate the Agreement by written notice to the other if: (a) that other party commits any breach of any of the provisions of the Agreement and, in the case of a breach capable of remedy, fails to remedy the same within 14 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; (b) the other party 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 the Insolvency (Northern Ireland) Order 1989 (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of the Insolvency (Northern Ireland) Order 1989 (being a partnership) has any partner to whom any of the foregoing apply; or (c) the other party 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 for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or (d) a petition is filed, a notice is given, a resolution os passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or (e) 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 other party; or (f) a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or (g) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; (h) a creditor or encumbrancer of the other party 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 14 days; or (i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 15.3(b) to 15.3(h) above; or (j) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
15.4. Supplier shall be entitled forthwith to terminate the Agreement by written notice to Customer if: (a) Supplier or Customer undergoes a change in Control; or (b) the actions or omissions of Customer, any of its employees, agents or representatives, or the continued affiliation between Supplier and Customer, in Supplier’s reasonable opinion, damages (or risks causing damage to) Supplier, its brand, reputation or the Products or brings (or is at risk of bringing) Supplier into disrepute.
15.5. For the purposes of clause 15.3(a), a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).
15.6. Any waiver by either party of a breach of any provision of the Agreement shall not be considered as a waiver of any subsequent breach of the same or any other provision of the Agreement.
15.7. No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15.8. The rights to terminate the Agreement given by this clause shall be without prejudice to any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.
15.9. Upon termination of the Agreement, Customer shall, in writing and at the time of giving the notice of termination provide Supplier with an up to date comprehensive list of the names, addresses and contact details including telephone, mobile or otherwise, and email addresses of all prospective customer enquiries for the Products within the Territory at that point unfulfilled.
15.10. Supplier reserves the right to amend these General Terms from time to time by emailing all Customers currently signed up on the basis of the General Terms with a copy of the amended terms in accordance with the notice provisions in clauses 21.1 and 21.3 (inclusive). Such amendments shall be deemed binding upon the parties within two (2) weeks of the date of such notice if Customer does not object to same. If Customer does object and the parties cannot reach an agreement on any revised terrms, within such period as Supplier determines (each acting reasonably and in good faith), then Supplier shall be entitled to terminate the Agreement (without liability) as if the Initial Term had expired early on the date of written notice served by Supplier to Customer.
15.11. Save as outlined in clause 15.10, no variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16. NON COMPETE
16.1. Customer shall purchase the Products only from Supplier, and shall not, without Supplier’s prior written consent, during the term of the Agreement distribute, sell, act as sales agent for, or manufacture any products which are the same, similar to, or otherwise compete with the Products.
16.2. Customer shall in no way use any Restricted Information relating to Supplier, its business or to the Products for the sale of any competing product either during the term of the Agreement or for any time thereafter. Any violation of this clause by Customer shall entitle Supplier, without prejudice to any other right or remedy to which it may be entitled to damages including but not limited to reasonable legal fees and costs.
17.1. Consistent with its general compliance obligations under the Agreement Customer shall: (a) comply with all applicable laws, statutes, regulations in force in the UK and Ireland relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements); (b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK, or under equivalent or similar Irish legislation had such activity, practice or conduct been carried out in Ireland; (c) comply with any relevant industry code on bribery as the relevant industry body may update it from time to time (Relevant Policies); (d) have and shall maintain in place throughout the Term its own policies and procedures to ensure compliance with the Relevant Requirements and the Relevant Policies, and will enforce them where appropriate; (e) promptly report to Supplier any request or demand for any undue financial or other advantage of any kind received by Customer in connection with the performance of the Agreement; (f) immediately notify Supplier (in writing) if a foreign public official becomes an officer or employee of Customer or acquires a direct or indirect interest in Customer, and Customer warrants that it has no foreign public officials as direct or indirect owners, officers or employees at the date of the Agreement; and (f) on written request by Supplier certify to Supplier in writing signed by an officer of Customer, compliance with this clause 17 by Customer. Customer shall provide such supporting evidence of compliance as Supplier may reasonably request.
17.2. For the purpose of this clause 17, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purpose of this clause 17, a person associated with Customer includes any agent, delegate or subcontractor of Customer.
18. CONSEQUENCES OF TERMINATION
18.1. Upon the termination of the Agreement for any reason: (a) Supplier shall be entitled (but not obliged) to repurchase all unused, undamaged Products then held by Distributor in accordance with the terms of the Refunds Policy (save that the 60 day limit shall not apply, that Customer shall be paid in cleared funds for the relevant value of the Products, less a restocking fee of 7.5% of the value of the relevant Products) to repurchase from Customer all or part of any stocks of the Products then held by Customer at their invoice value (less any taxes, delivery costs or other charges) or the value at which they stand in the books of Customer, whichever is lower and fulfil orders placed by Customer’s customers at its discretion, provided that: (i) Supplier shall be responsible for arranging and for the cost of, transport and insurance (unless otherwise specified); and (ii) Customer may sell stocks for which it has accepted orders from customers prior to the date of termination, or in respect of which Supplier does not, by written notice given to Customer within seven days after the date of termination exercise its right of repurchase, and for those purposes and to that extent the provisions of the Agreement shall continue in full force and effect; and (iii) any Products not sold must be returned to Supplier in a good and undamaged condition reflecting their non-use; (b) Customer shall at its own expense and within 30 days send to Supplier or otherwise dispose of in accordance with the directions of Supplier all samples of the Products and any advertising, promotional or sales material relating to the Products, as well as any Restricted Information, then in the possession of Customer; (c) Customer shall cease to promote, market or advertise the Products or to make any use of the Trade Marks other than for the purpose of selling stock in respect of which Supplier does not exercise its right of repurchase (for up to a period of no later than 6 months following the date of termination or expiry); (d) the provisions of any clauses of these General Terms which by their nature or the context are required to survive termination or expiry (including clauses 1, 2, 5, 9, 10, 11, 12.4, 12.5, 13, 16 and 18 – 21 (inclusive)) shall continue in force in accordance with their respective terms; (e) all sums due and owing under the Agreement shall immediately become payable without further notice or demand; and (f) subject as otherwise provided in the Agreement and to any rights or obligations which have accrued prior to termination, neither party shall have any further obligation to the other under the Agreement and all rights of Customer shall cease. Supplier may also, at its option, cancel any then unfulfilled orders for Products raised by Customer.
18.2. Supplier may cancel orders for Products placed by Customer before termination if delivery would fall due after termination, whether or not they have been accepted by Supplier. Supplier shall have no liability to Customer in respect of such cancelled orders.
18.3. Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
19. NATURE OF AGREEMENT
19.1. The Agreement is personal to Customer. Customer may not without the written consent of Supplier, assign, mortgage, charge (otherwise than by floating charge) or dispose of any of its rights, or sub-contract or otherwise delegate any of its obligations under the Agreement.
19.2. Nothing in the Agreement shall create, or be deemed to create, a partnership or the relationship of principal and agent or employer and employee between the parties (or any of their employees), it being intended that the parties shall remain an independent from each other with each party being responsible for its own actions.
19.3. The Agreement contains the entire agreement between the parties with respect to the subject matter of the Agreement, supersedes all previous agreements and understandings between the parties with respect to its subject matter.
19.4. The Agreement may not be modified except by an instrument in writing signed by the duly authorised representatives of the party, provided that
19.5. Each party acknowledges that, in entering into the Agreement, it does not do so on the basis of, and does not rely on, any representation, warranty or other provision except as expressly provided in the Agreement, and all conditions, warranties or other terms implied by statute or common law (including any warranties of fitness for any particular purpose) save as set out herein are hereby excluded to the fullest extent permitted by law.
19.6. Except as expressly provided in the Agreement, including clause 19.5, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
19.7. The Quotation may be executed in any number of counterparts, each of which will be considered an original, but all of which together will constitute the same agreement. The exchange of an executed Quotation document (in counterparts or otherwise) by electronic transmission shall be sufficient to bind the parties to the terms and conditions of the Agreement.
19.8. If any provision of the Agreement or the application thereof to any party or circumstance shall be declared void, illegal or unenforceable, the remainder of the Agreement shall be valid and enforceable to the extent permitted by applicable law. In such event, the parties shall use commercially reasonable efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by applicable law, achieves the purposes intended under the invalid or unenforceable provision.
20. LAW AND COURTS
20.1. The Agreement shall be governed by and construed in all respects in accordance with the laws of Northern Ireland, and each party hereby submits to the exclusive jurisdiction of the courts of Northern Ireland.
21. NOTICES AND SERVICE
21.1. Any notice or other information required or authorised by the Agreement to be given by either party to the other may be given by hand or sent (by first class pre-paid post, hand delivery) to the other party at the address referred to at the beginning of the Agreement, or (in the case of notice served by Supplier only) by email to the email address specified for Customer in the Quotation. Any notice sent by Customer to Supplier shall be copied (which copy shall not itself constitute notice) by email to Andrew O’Brien firstname.lastname@example.org.
21.2. Any notice or other information given by post under clause 21.1 which is not returned to the sender as undelivered shall be deemed to have been given on the third day after the envelope containing the same was so posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, and that it has not been so returned to the sender, shall be sufficient evidence that such notice or information has been duly given.
21.3. Any notice or other information sent by e-mail from Supplier to Customer shall be deemed to have been duly sent on the date of transmission.