Lola Design Ltd. Terms and Conditions of Sale
1.1 In these Conditions:
“BUYER” means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller.
“SELLER” means Lola Design ltd.
“GOODS” means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions.
“BESPOKE GOODS” means goods exclusively produced for a single BUYER, or group of BUYERS, that are differentiated from the SELLER’s standard trade offering to meet that BUYER(S) requirements.
“CONDITIONS” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any Special Terms
“SPECIAL TERM” means any special term or condition which is (1) agreed in writing between the Buyer and the Seller, and (2) the written record of any such agreement is signed by an Authorised Representative of the Seller.
“CONTRACT” means the contract for the sale of the Goods by the Seller to the Buyer.
“WRITING” includes letter, telex, cable, facsimile, email transmission and comparable means of communication.
“AUTHORISED REPRESENTATIVE” means an employee of the SELLER holding the position of Manager or more Senior position.
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation. Unless the context otherwise requires words importing the singular number shall include the plural number and vice versa, words importing the masculine gender shall include the feminine gender and words importing persons shall include corporations.
- Basis of the sale.
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions, , superseding and replacing all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
2.1.1 All orders for Goods shall be deemed to be or include an offer by the Buyer to be bound by these Conditions.
2.1.2 Acceptance of delivery of the Goods by the Buyer shall be deemed to be conclusive evidence of the Buyer’s acceptance of these Conditions.
2.2 No variation to these Conditions or the terms of the Contract shall be binding unless the variation is both (1) agreed in Writing between the authorised representatives of the Buyer and the Seller, and (2) the written record of the variation is signed by an Authorised Representative of the Seller.
2.3 The Seller’s employees or agents are not authorised to make any representation concerning the Goods unless confirmed by an Authorised Representative of the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representation which is not so confirmed.
2.4 The Seller will make a search with a credit reference agency who will keep a record of that search. The Seller may provide data concerning the Buyer’s trade performance to a credit reference agency who will share that information with other businesses when assessing applications for credit and fraud prevention.
- Orders and specifications.
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by an Authorised Representative of the Seller.
3.2 The quantity, quality and description of any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).
3.3 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damage, costs (including legal fees on a full indemnity basis) and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, utility model, copyright, registered design, registered or unregistered trademark or trading style or other industrial or intellectual property rights or right relating to any confidential information or secret process of manufacture of any other person which results from the Seller’s use of the Buyer’s specification.
3.4 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to the Buyer’s specification, which do not materially affect their quality or performance.
3.5 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit) costs (including the costs of all labour and materials used) damages, charges and expenses incurred by the Seller as a result of cancellation.
3.6.1 Where Goods are to be produced to the Buyer’s specification and/or are to bear the name of the Buyer or the Buyer’s customer then the Buyer shall purchase at the contract price all such Goods whether in finished or unfinished form which the Seller holds.
3.6.2 Without prejudice to the generality of Condition 3.6.1 on the termination of any Contract between the Seller and the Buyer for the supply of Goods whether pursuant to clause 5.3.1 or 10.2 or otherwise the price shall become immediately due and payable whether the Goods are in finished or unfinished form and notwithstanding non- delivery thereof and upon payment made in accordance with this Clause the Buyer shall take immediate delivery thereof.
3.7 Except for Goods damaged in transit or alleged to be defective in quality the Seller will only accept the return of Goods with prior written permission of the Seller. The Buyer must inform the Seller of any such defects within a fortnight of delivery, as refunds will not normally be offered after this time.
3.7.1 If such permission is given, a handling charge of 20% of the invoiced value of the Goods returned will be imposed.
3.7.2 Bespoke Goods will only be replaced if falling below the standards of the prototype approved by the Buyer or subsequent changes agreed in writing between the Buyer and the Seller.
- Price of the Goods.
4.1 The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid) the price listed in the Seller’s published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture) any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions. The Seller may invoice the Buyer for such increased price of the Goods.
4.3 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
- Terms of payment.
5.1 Subject to any Special Term the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after appropriation of the Goods to the Contract.
5.2 Subject to any special terms in Writing agreed between the Buyer and the Seller, the Buyer shall pay the price of the Goods within 30 days of the date of the Seller’s invoice or any longer period if specified in the Seller’s invoice notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled whether in respect of the Contract or (at the Seller’s option) of all Contracts between the Seller and the Buyer to:
5.3.1 Cancel the Contract or Contracts or suspend any further deliveries without liability to the Buyer;
5.3.2 Appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other Contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.3.3 Charge the Buyer interest from the date when payment becomes due on the amount unpaid at the statutory rate of interest on a judgement debt (and shall accrue at such rate after as well as before any judgement) until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest). The Seller will claim statutory interest at 8% above base rate and compensation under Late Payment of Commercial Debt Regulations 2002 when Buyer is a business and at 8% under S.69 of County Court Act 1984 when Buyer is a consumer.
5.4 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the price of all Goods that have been delivered but not paid for shall become immediately due and payable notwithstanding any previous agreement to the contrary, and the Seller shall be entitled to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
6.1 Delivery of the Goods shall be made by the Seller delivering the Goods to the place specified in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s Order (if accepted by the Seller).
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 Where the Goods are to be delivered in instalments each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 If the Seller fails to deliver the Goods at all for any reason other than any cause beyond the Seller’s reasonable control, or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.5 Claims in respect of the Seller’s failure to make delivery must be notified by the Buyer to the Seller in writing within 14 days of the earlier of (1) the date of the invoice in respect of such purported delivery, and (2) any date quoted for delivery of the Goods.
6.5.1 As per clause 3.7, Claims in respect of short deliveries and/or defects in quality and/or damage to goods in transit must be notified by the Buyer to the Seller in writing within 14 days of receipt of the Goods.
6.6 If the Buyer fails to take delivery of the Goods (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) or the Buyer fails to give the Seller adequate delivery instructions at least 14 days before any date quoted for delivery then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.6.1 Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage and extra delivery or,
6.6.2 Sell the Goods at the best price readily obtainable and, after deducting all reasonable storage (including insurance) and selling expenses, account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
- Risk and property
7.1 Risk of damage for or loss of the Goods shall pass to the Buyer:
7.1.1 in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the goods are available for collection;
7.1.2 or in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods or was ready to tender delivery of the Goods.
7.2 Notwithstanding delivery and/or the passing of risk in the Goods or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has
received in cash or cleared funds payment in full of the price of the Goods and any other charges / costs due and the price of all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods or any of them are still in existence and have not been sold or resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods (or such of the Goods as are still in existence and have not been sold or resold) to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
7.6 If the Buyer incorporates the Goods into other products the property in those other products shall vest in the Seller and the preceding sub-clauses of this clause shall apply with like effect to such other products.
7.7 All tools, patterns, designs, formulae, specifications and other materials or work produced or used by the Seller for the execution of any order of the Buyer shall remain the property of the Seller.
7.8 The intellectual property rights in all patterns, designs, products, formulae, specifications, images, text, copy and other materials produced by the Seller, or by a third party for the Seller, in the fulfilment of any order placed by the Buyer shall remain the property of the Seller. The Buyer shall have no interest in or claim thereto, except for the limited right to use the same pursuant to this Agreement and subject to its terms and conditions. Additionally:
7.8.1 The Buyer specifically acknowledges purchase of artwork does not mean purchase of copyright.
7.8.2 The Buyer acknowledges the Seller is a member of ACID and that any infringement of these rights will be pursued seriously.
7.9 Goodwill: The Buyer recognises the great value of the goodwill associated with the Goods and the Seller’s brand and acknowledges that such goodwill is exclusively that of Seller.
7.10 The Buyer further recognises that a breach by the Buyer of any of its representations, warranties, covenants, agreements or undertakings hereunder may cause the Seller irreparable damage, which cannot be readily remedied in damages in an action at law, and may, in addition thereto, constitute an infringement of the Seller’s copyrights, trademarks and other proprietary rights in and to the Goods, thereby entitling the Seller to equitable, injunctive and other applicable remedies and costs.
7.11 In addition to all other remedies to which the Seller may be entitled (including, without limitation, termination of this Agreement and injunctive relief), if the Buyer engages in any unauthorized use of the Seller’s intellectual property, the Buyer will pay the Seller an amount equal to forty (40) percent of the revenues the Seller receives from the sale of such products. The parties expressly agree that while the precise amount of damage suffered by the Seller from such improper use is difficult to determine with precision, the payment contemplated hereunder constitutes a reasonable estimate of the losses that might be sustained by the Seller thereby, and shall not be argued to be or deemed a penalty.
- Warranties and liability
8.1 Except where the Goods are sold to a person dealing as a consumer (as defined by section 12 of the Unfair Contract Terms Act 1977 and/or Regulation 3(1) of the Unfair Terms in Consumer Contracts Regulations 1999) all warranties, conditions or terms expressed, implied, statutory or otherwise as to quality, condition or fitness for purpose of any of the Seller’s products for any particular purposes or otherwise are hereby excluded to the fullest extent permitted by law.
8.2 Where the goods are sold under a consumer transaction (as defined by regulation 2(1) of the Consumer Transactions (Restrictions on Statements) Order 1976 as subsequently amended) the statutory rights of the Buyer are not affected by these Conditions.
8.3 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within twenty eight days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall be deemed to have accepted the Goods and the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.4 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price) but the Seller shall have no further liability to the Buyer.
8.5 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other terms or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of Goods or their use or resale by the Buyer, except as expressly provided in these Conditions.
8.6 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the Seller’s reasonable control:
8.6.1 Act of God, pandemic, explosion, flood, tempest, fire or accident;
8.6.2 War or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.6.3 Acts, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.6.4 Import or export regulations or embargoes;
8.6.5 Strikes, lock-outs, or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.6.6 Difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.6.7 Power failure or breakdown in machinery.
9.1 If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, utility model, copyright, registered design, registered or unregistered trademark or trading style or other industrial or intellectual property rights or right relating to any confidential information or secret process of manufacture of any other person, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim provided that:
9.1.1 The Seller is given full control of any proceedings or negotiations in connection with any such claim;
9.1.2 The Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
9.1.3 except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld);
9.1.4 The Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
9.1.5 The Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and
9.1.6 Without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require mitigating or reducing any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.
- Insolvency of Buyer
10.1 This clause applies if:
10.1.1 The Buyer (being an individual) makes or is party to any composition or individual voluntary arrangement with its creditors or becomes subject to a deed of arrangement or an administration or becomes bankrupt, or the Buyer (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or is party to any composition or a company voluntary arrangement, or is subject to administration, or administrative receivers are appointed, or the Buyer (being a firm or partnership) makes any composition or a voluntary arrangement, or is subject to an administration order, winding up or receivership, or
10.1.2 An encumbrance takes possession of, or a receiver is appointed over any of the property or assets of the Buyer, or
10.1.3 The Buyer ceases, or threatens to cease, to carry on business or
10.1.4 The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled whether in respect of the Contract or (at the Seller’s option) of all Contracts between the Seller and the Buyer to cancel the Contract or Contracts or suspend any further deliveries without any liability of the Seller to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary. The Seller shall also be entitled to enter upon the premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
- Restrictions on Distribution.
11.1 The Goods are supplied by the Seller on the strict condition that the Buyer shall refrain from making active sales of the Goods outside the United Kingdom or the geographic area specified in the Seller’s order confirmation or invoice delivered by the Seller (the specified area). For these purposes, active sales shall be understood to mean actively approaching or soliciting customers, including, but not limited to, the following actions: (a) visits, (b) direct mail, including the sending of unsolicited emails, and (c) advertising in media, advertising and/or listing Goods on the internet or other promotions, where such advertising or promotion is specifically targeted at customers outside the United Kingdom or the specified area
11.2 The Buyer shall indemnify the Seller and any member of the group of companies of which the Seller is a member against any losses, claims, cost, action or proceedings which may be suffered by or be brought against the Seller or any of the group of companies of which the Seller is a member by any third party as a result of any breach of clause 11.1.
11.3 The buyer’s obligation under clause 11.1 shall extend to the sale of or distribution by it to associated or subsidiary companies or to any individual or firm which is associated with the Buyer or to any business which the buyer knows, or ought reasonably to have known, intends to, or does, sell or distribute the Goods outside the specified area.
11.4 The Seller shall be entitled to enforce the Buyer’s obligation under clause 11.1 whether or not any action has been commenced against it by a third party or if the Seller reasonably apprehends that a breach of the obligations is about to occur and notifies the Buyer accordingly.
11A. QUALITATIVE SELECTION CRITERIA – PHYSICAL POINT OF SALE BUYERS
11A.1 POINTS OF SALE/PREMISES
11A1.1 The point of sale provides a suitable retail environment consistent with the quality of the Goods and with a customer’s reasonable expectations with regards to the Seller’s brand image. A point of sale where the following criteria are met, is suitable:
11A.1.1.1 The age, exterior aspect, and maintenance of the store’s building must not hinder the customer’s shopping experience (clean and safe);
11A.1.1.2 The name of the store must be consistent with a quality retail experience; and
11A.1.1.3 The point of sale provides a suitable retail environment consistent with the quality of the Goods and with a customer’s reasonable expectations with regards to the Seller’s brand image.
11A.1.2 As such, the Goods are supplied by the Seller on the strict condition that 95% or more of the Buyer’s sales are to customers visiting the premises the Goods are delivered to unless specific written agreement to an alternative sales location or medium is provided by the Seller.
11A.1.3 The following criteria will be considered when assessing the quality of the point of sale location:
11A.1.3.1 Geographic location and footfall; and
11A.1.3.2 Quality of other stores in the direct vicinity of the point of sale.
11A.1.4 The premises must be open to the general public and specialise in the retail sale of related products or have a specialist department for the sale of related products.
11A.1.5 Business hours are consistent with the prevailing standards for retail stores.
11A.1.6 Where the premises are not solely dedicated to the sale of the Goods but are organised for the display and sale of different brands of products, including third party brands, the Buyer shall display the Goods in a separate section of the premises which shall be of at least equal prominence to any other section of the premises. This section of the premises shall be clearly branded so that the location of the sales area dedicated to the Goods is obvious to any potential customer immediately on entering the premises. All space dedicated to promoting the Goods shall be in the house style of the Seller and shall be kept clean and visually attractive.
11A.1.7 Distinction of sales zones (if applicable): In the event that the Buyer’s premises also contain products of another type, the Buyer shall establish clear physical or virtual separation between the sales zones for the Goods and sales zones for other products within its premises, according to the type of products. The Buyer shall thus present the Goods in a sales zone, which includes included similar products
11A.1.8 The Buyer shall mount continual and changing displays of the Goods in prominent and appropriate positions on the premises.
11A.1.9 The Buyer has adequate storage facilities at the premises. All or a separate part of the storage facilities shall be dedicated to the storage of the Goods so as to maintain them in perfect condition and suitable for resale.
11A.1.10 The Buyer must also offer products of different brands of the same level of quality so as to enable customers the opportunity to compare the Goods and to illustrate the brand image of the Goods
11A.2 PRODUCT PROMOTION
11A.2.1 All advertising shall present the Goods as quality products and shall use suitable depictions and language for this purpose. Any advertising that in the Seller’s reasonable opinion is inappropriate shall be immediately discontinued or (if required) recalled by the Buyer.
11A.2.2 All sales brochures, catalogues and point of sale materials shall be either (i) materials supplied by the Seller or (ii) materials previously approved in writing by the Seller.
11A.2.3 The Buyer shall use any point of sale materials provided by the Seller in such manner as the Seller may reasonably specify.
11A.3 PRODUCT SALES, SERVICE AND SUPPORT
11A.3.1 The Buyer will employ a sufficient number of technically trained sales staff within the premises who shall be:
11A.3.1.1 appropriate in appearance and attitude for the prestige of the brand; and
11A.3.1.2 available throughout the premises’ opening hours.
The sufficiency is assessed with regards to the size and traffic in the point of sale.
11A.3.2 The Buyer can sustain enough available stock of displayed Goods, i.e. can secure on-shelf availability to satisfy customers’ needs.
11A.4 STOCK LEVELS
11A.4.1 All displayed Goods must be in stock and the Buyer must be able to deliver these to their customers within 72 hours.
11A.4.2 The Buyer shall be able to set up and maintain a sufficient stock of the full range of Goods and their accessories, assessed on the basis of its past and foreseeable sales.
11B. QUALITATIVE SELECTION CRITERIA – ONLINE RETAILERS
This section is primarily applicable to all brick-and-mortar accounts which also wish to sell via the internet. The Seller holds a genuine belief that, not least because of the in-depth product knowledge gained in such retail environments, such accounts are far better placed to deliver the customer experience end customers expect of the Seller’s brand. In exceptional cases, the Seller may give written approval for online-only retailers to stock the brand. All online retailers are supplied on the premise that their primary market will be the territory to which Goods are supplied. In any event, it is a strict condition of sale that all online retailers must meet the following criteria:
11B.1 WEBSITE-RELATED CRITERIA
11B.1.1 The Buyer’s website must be hosted by a reputed ISP, on a reliable and high-quality server, with sufficient bandwidth to deal with the average demand of customers without any substantial deterioration in rapidity or reliability. The website shall be accessible with at least 99.9% availability and very low latency.
11B.1.2 The Buyer’s website shall also respect the following criteria:
11B.1.2.1 The website is operated on a retail basis and is freely and easily accessible (including through search engines) to the public;
11B.1.2.2 The website’s domain name is compatible with the Supplier’s image and is connected to the commercial name of the point of sale (if any);
11B.1.2.3 The website’s graphics are brand-enhancing;
11B.1.2.4 The name and contact details of the Buyer's offline stores, if any, will be clearly referenced on the website, including provision, where possible, for a store locator; and
11B.1.2.5 The website must be easy-to-navigate and all Goods must be easy to find.
11B.2 SHOPPING EXPERIENCE-RELATED CRITERIA
11B.2.1 The website provides an online retail environment consistent with the quality of the Goods and with a customer’s reasonable expectations regarding the Seller’s brand image.
11B.2.2 The Buyer must offer on its website the same levels of service as in its physical stores (if any).
11B.2.3 Presentation of competing brands must be in keeping with the prestige of the Seller’s brand so as to enhance and complement the product range.
11B.2.4 The website provides secure and efficient browsing to the customers; in particular:
11B.2.4.1 There are measures to ensure the security of payments, customer privacy and downtime minimization;
11B.2.4.2 The loading time is reasonable and the website is scalable (if possible).
11B.2.4.3 Reasonable information is made available to the customers, in particular:
11B.126.96.36.199 Goods are presented according to a relevant categorization;
11B.188.8.131.52 Complete technical information (including specification, size and weight) of all Goods
11B.184.108.40.206 The availability of stock is displayed in real time;
11B.220.127.116.11 Independent reviews are made available;
11B.18.104.22.168 Customer receives an order confirmation;
11B.22.214.171.124 The website contains clearly identified brand sections;
11B.126.96.36.199 The website’s search and product comparison tools provide relevant results. For example, results are considered irrelevant if the search of a product category gives results of other categories (eg: the search word “gift cards” giving results of floor cleaners);
11B.188.8.131.52 Intrusive advertising is limited;
11B.184.108.40.206 The website can provide in-depth online demonstrations of the Goods;
11B.220.127.116.11 360° videos, 3D hot spots, up-to-date technical descriptions, etc. are available; and
11B.18.104.22.168 Where possible, online advice from a specialist is available, free of charge during extended business hours.
11B.2.5 The Buyer shall clearly specify additional charges associated with the sale and delivery of the Goods including postal charges and credit or debit card charges. These details must be made available before the point of ordering.
11B.3 STOCK, DELIVERY AND AFTER-SALES RELATED CRITERIA
11B.3.1 The Buyer shall not feature any of the Goods on its website where it is unable to deliver such items within 7 days of the order and shall hold sufficient stocks of the Goods for these purposes. The Buyer shall make it clear if an item featured on a website page is not in stock.
11B.3.2 The website provides an adequate delivery service to online customers in line with the best industry standards (including tracking and expedited delivery), and can limit delivery both in terms of the number of Goods supplied to an individual customer and to the territory to which this agreement applies.
11B.3.3 The Buyer’s website can provide adequate after-sales services in line with the best industry standards. In particular:
11B.3.3.1 The customers shall be sufficiently informed about the after-sales service offered. The website must clearly display the existence of after-sales service, including its conditions and procedures.
11B.3.3.2 The after-sales service shall be able to run initial diagnosis and handle returns to the customers promptly.
11B.3.3.3 The Buyer shall provide a customer helpline telephone number that is available during extended business hours. The helpline will be manned by a trained member of staff who is able to answer technical queries in relation to the Goods and deal with sales related issues such as returns.
11B.3.4 The website shall provide customers with the opportunity to share their experience concerning the Goods with other potential customers through tools such as customer review and product rating, video reviews; blogs and discussion boards.
11B.3.5 The Buyer must either have an internal certification process to guarantee that shown reviews are real ones from real customers who have really bought the Goods and by detailing and proving their user experiences or they must at least indicate which reviews have been verified to stem from customers who actually bought the product and which not.
11B.3.6 On the website, all customers shall be given the opportunity to indicate whether they found a given review helpful and the website will indicate how many customers found a given review helpful. Customers shall also have the possibility to comment on a given review.
11B.3.7 It is a strict condition of continued supply that the Buyer maintains a >90% positive customer feedback rating on both the specific Goods and for their overall sales experience.
11B.4 FURTHER WEBSITE REQUIREMENTS
11B.4.1 The Buyer shall use original material provided by the Seller for advertising the Goods, or the Buyer’s own material that has previously been approved in writing by the Seller. In either case, such material should be along the following lines:
11B.4.1.1 All product shots featuring the Goods must be of a quality and resolution suitable for the prestige of the Seller’s brand and must include, as a minimum requirement, a full colour hero shot and the ability to zoom in on features of the Goods; and
11B.4.1.2 The product information and care guidelines for each product must be included on that product's page;
11B.4.2 Imagery for each particular product should only be seen by the user if the Buyer has - in accordance with 11B4.1.2 above – that product in stock and available for sale.
11B.4.3 The Buyer must:
11B4.3.1 operate and maintain an advanced technology to ensure secure ordering and payment procedures and secure (i.e. encrypted payment process of SSL.);
11B4.3.2 include a fully integrated payment system;
11B4.3.3 allow payment by (i) credit cards; (Ii) debit card; and (iii) payment on delivery; and
11B4.3.4 ensure that invoices are delivered with any shipment of the Goods
11B.4.4 Buyers must ensure compliance with all applicable laws and regulations regarding the use of the internet, including without limitation all e-commerce, consumer protection, including distance selling, data protection and unfair competition legislation.
11B.5 THIRD PARTY WEBSITES
11B.5.1 In order to preserve the premium image of the Seller and its Goods, the Buyer’s internet-shop shall be an independent website run by the Buyer (or on its behalf) and the sale of Goods on the internet through third party platforms or websites (e.g. eBay) or market places (e.g. Amazon marketplace) cannot and does not fulfil all of the criteria outlined above, and is, therefore, prohibited.
12.1 The Seller may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group of companies, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Seller.
12.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. Any such notice may be delivered personally or sent by first class prepaid post and shall be deemed to have been served if by delivery when delivered and if by first class post 48 hours after posting.
12.3 No waiver by the Seller of any beach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision. No forbearance, delay or indulgence by the Seller in enforcing the provisions of these Conditions or the Contract shall prejudice or affect the rights of the Seller. No right, power or remedy herein conferred upon or reserved for the Seller is exclusive of any other right, power or remedy available to the Seller and each such right, power or remedy shall be cumulative.
12.4 Severability: If any term or provision of these Conditions is held to be invalid or unenforceable by any court of competent jurisdiction or any other authority vested with jurisdiction, such holding will not affect the validity or enforceability of any other term or provision hereto, and these Conditions will be interpreted and construed as if such term or provision, to the extent the same will have been held to be invalid, illegal or unenforceable, had never been contained herein. The parties agree to replace any invalid, illegal or unenforceable provision with a valid legal and enforceable provision that most closely approximates the intent and economic effect of the invalid, illegal or unenforceable provision.
12.5 The Buyer shall not assign or transfer its rights or obligations under the Contract whether in whole or in part without the prior written consent of the Seller.
12.6 In the event of a Dispute, the Buyer and the Seller agree to use best endeavours to resolve such disagreements informally. In the unlikely event such endeavours do not lead to resolution, the Contract shall be governed by the Laws of England and be subject to the exclusive jurisdiction of the English Courts.
12.7 We will make a search with a credit reference agency which will keep a record of that search. We may also make enquiries about the principal directors with a credit reference agency. If supplying payment data to a credit reference agency we will monitor and record information relating to your trade performance and such records will be made available to credit reference agencies who will share that information with other businesses when assessing applications for credit and fraud prevention.