Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.4.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Products in accordance with these Conditions.
Customer: the person or firm who purchases the Products from the Supplier.
Delivery Location: has the meaning given in clause 4.2.
Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control.
Order: the Customer's order for the Products, as set out in the Customer's purchase order or as otherwise submitted in writing by the Customer, as the case may be.
Products: the products (or any part of them) set out in the Order.
Specification: any specification for the Products, including any related plans and drawings, that is agreed [in writing] by the Customer and the Supplier.
Supplier: KOI FOOTWEAR LIMITED (registered in England and Wales with company number 10434810).
Warranty Period: has the meaning given in clause 5.1.
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes email.
2. Basis of contract
2.1. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2. The Order constitutes an offer by the Customer to purchase the Products in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.3. The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4. Any samples, drawings, or advertising produced by the Supplier and any illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Products referred to in them. They shall not form part of the Contract nor have any contractual force.
2.5. A quotation for the Products given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3.1. The Products are described in the Supplier's catalogue.
3.2. To the extent that the Products are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3. The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
4.1. The Supplier shall ensure that:
(a) each delivery of the Products is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Products (including the code number of the Products, where applicable), special storage instructions (if any) and, if the Products are being delivered by instalments, the outstanding balance of Products remaining to be delivered; and
(b) if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense.
4.2. The Supplier shall deliver the Products to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Products are ready.
4.3. Delivery is completed on the completion of loading of the Products at the Delivery Location.
4.4. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.5. If the Supplier fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement products of similar description and quality in the cheapest market available, less the price of the Products. The Supplier shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.6. If the Customer fails to take delivery of the Products within three (3) Business Days of the Supplier notifying the Customer that the Products are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract in respect of the Products:
(a) delivery of the Products shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Products were ready; and
(b) the Supplier shall store the Products until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7. If ten Business Days after the day on which the Supplier notified the Customer that the Products were ready for delivery the Customer has not taken actual delivery of them, the
Supplier may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Products or charge the Customer for any shortfall below the price of the Products.
4.8. If the Supplier delivers up to and including 5% more or less than the quantity of Products ordered the Customer may not reject them.
4.9. The Supplier may deliver the Products by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1. The Supplier warrants that on delivery, and for a period of six (6) months from the date of delivery (Warranty Period), the Products shall:
(a) conform in all material respects with their description and any applicable Specification;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Products Act 1979).
5.2. Subject to clause 5.3, if:
(a) the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in clause 5.1;
(b) the Supplier is given a reasonable opportunity of examining such Products; and
(c) the Customer (if asked to do so by the Supplier) returns such Products to the Supplier's place of business at the Supplier's cost,
(d) the Supplier shall, at its option, repair or replace the defective Products, or issue a credit note in respect of the defective Products.
5.3 The Supplier shall not be liable for the Products' failure to comply with the warranty set out in clause 5.1 if:
(a) the Customer makes any further use of such Products after giving notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Products or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
(d) the Customer alters or repairs such Products without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Products differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4. Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Products' failure to comply with the warranty set out in clause 5.1.
5.5. The terms implied by sections 13 to 15 of the Sale of Products Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6. These Conditions shall apply to any repaired or replacement Products supplied by the Supplier.
6. Title and risk
6.1. The risk in the Products shall pass to the Customer on completion of delivery.
6.2. Title to the Products shall not pass to the Customer until the earlier of:
(a) the Supplier receives payment in full (in cash or cleared funds) for the Products; and
(b) the Customer resells the Products, in which case title to the Products shall pass to the Customer at the time specified in clause 6.4.
6.3. Until title to the Products has passed to the Customer, the Customer shall:
(a) store the Products separately from all other products held by the Customer so that they remain readily identifiable as the Supplier's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
(c) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d); and
(e) give the Supplier such information as the Supplier may reasonably require from time to time relating to:
(i) the Products; and
(ii) the ongoing financial position of the Customer.
6.4. Subject to clause 6.5, the Customer may resell or use the Products in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Products. However, if the Customer resells the Products before that time:
(a) it does so as principal and not as the Supplier’s agent; and
(b) title to the Products shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
6.5. At any time before title to the Products passes to the Customer, the Supplier may:
(a) by notice in writing, terminate the Customer's right under clause 6.4 to resell the Products or use them in the ordinary course of its business; and
(b) require the Customer to deliver up all Products in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.
7. Price and payment
7.1. The price of the Products shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date of delivery.
7.2. The Supplier may, by giving notice to the Customer at any time up to 10 Business Days before delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to:
(a) any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Products ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3. The price of the Products:
(a) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of packaging, insurance and transport of the Products, which shall be invoiced to the Customer.
7.4. The Supplier may invoice the Customer for the Products on or at any time after acceptance of the Customer’s Order.
7.5. The Customer shall pay each invoice submitted by the Supplier in accordance with the terms of the distribution agreement. Time for payment shall be of the essence of the Contract.
7.6. If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.6 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
7.7. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. Limitation of liability
8.1 The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability which it would be unlawful to limit or exclude liability for.
8.3. Subject to clause 8.3, the Supplier's total liability to the Customer shall not exceed an amount equal to the total sums paid by the Customer to the Supplier in the 12 months prior to liability arising.
8.4. Subject to clause 8.3, the following types of loss are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
8.5. This clause 8 shall survive termination of the Contract
9.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
9.2. Without limiting its other rights or remedies, the Supplier may suspend provision of the Products under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.3. Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.4. On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Products supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
9.5. Termination or expiry of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
9.6. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
10. Force majeure
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for six (6) weeks, the party not affected may terminate the Contract by giving 14 days' written notice to the affected party.
11.1. Assignment and other dealings.
(a)The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
11.2. Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
(a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
11.4. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 11.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the email addresses set out in the Contract Details.
(b)Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
11.6. Third party rights.
(a) The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
11.7. Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
11.8. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.