Terms of service
TERMS AND CONDITIONS OF SALE
The Buyer's attention is drawn in particular to Condition 6.
These terms and conditions ("these Conditions") are the terms on which David Luke Limited ("the Company") sells goods ("the Goods") to other businesses ("the Buyer"). Save where expressly stated otherwise, these Conditions supersede all other terms and conditions previously used by the Company and apply to the sale of Goods to the Buyer to the exclusion of any other terms that the Buyer may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing and the Buyer hereby waives all rights it may have to rely on the same.
1. Quotations, Orders, Price and Cancellations
1.1 The Buyer may place an order by contacting the Company in writing or by telephone or (save for special make garments) via the Company's website. The Buyer shall be responsible for ensuring that all details and terms of any order are accurate. Each order constitutes an offer by the Buyer to purchase Goods ("the Ordered Goods")in accordance with these Conditions.
1.2 The Company reserves the right to reject any order for whatever reason. Where the Ordered Goods are to be supplied from stock, such supply is subject to availability of stocks at the time of delivery and, unless agreed otherwise by the Company, the relevant order will be rejected if the Company is out of stock. Call-off orders and forward orders are not available to the Buyer unless the Company has agreed to accept orders from the Buyer in advance of payment.
1.3 Each order shall only be deemed to be accepted by the Company once the Company has confirmed the order in writing or, if earlier, when the Ordered Goods are delivered to the Buyer (in whole or in part) ("a Binding Order").
1.4 Any samples, drawings, illustrations, statements, descriptions and advertising provided by the Company (whether on the Company's website, in the Company's catalogues and brochures or otherwise) are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. Save as expressly set out in these Conditions, such literature shall not form part of the contract between the Company and the Buyer for the sale of Goods nor have any contractual force.
1.5 The price for the Ordered Goods shall be the quoted price agreed by the Company with the Buyer in writing. A quotation for the Ordered Goods given by the Company shall not constitute an offer. A quotation shall only be valid for a period of one month from its date of issue. Where no price has been quoted by the Company, the price for the Ordered Goods shall be that listed in the Company's price list in force at the date of delivery.
1.6 The Company may, by giving notice to the Buyer at any time prior to delivery, increase the price of the Ordered Goods to reflect any increase in the cost of the Ordered Goods that is due to: (a) any factor beyond the Company'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 Buyer to change the delivery date, specification, quantity or type of Ordered Goods; or (c) the Buyer's failure to provide adequate, timely or accurate information or instructions.
1.7 The price of the Ordered Goods excludes: (a) the cost of packaging, insurance and delivery which the Buyer shall additionally be liable to pay to the Company at the rate published by the Company from time to time; and (b) value added tax which the Buyer shall additionally be liable to pay to the Company at the then prevailing rate.
1.8 Any cancellation of a Binding Order by the Buyer must be in writing and notified to the Company as soon as reasonably practicable following placement of the order and prior to delivery of the Ordered Goods. Cancellation of a Binding Order shall only be effective if agreed by the Company in writing and the Company reserves the right to make cancellation of a Binding Order conditional upon payment to the Company of fair and reasonable compensation for the Company's work, commitment and expenditure to date on such Binding Order at the time of cancellation.
1.9 Without limiting its other rights or remedies, the Company may cancel a Binding Order with immediate effect by giving written notice to the Buyer if: (a) the Buyer commits a material breach of these Conditions and (if such a breach is remediable) fails to remedy that breach within ten days of being notified in writing to do so; (b) the Buyer becomes insolvent or enters into receivership or administration or liquidation or a voluntary arrangement or threatens or appears likely to enter into any of the above procedures; or (c) the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business.
1.10 Cancellation of a Binding Order shall not affect any of the parties’ rights and remedies that have accrued as at the date of cancellation, including the right to claim damages in respect of any breach of these Conditions that existed at or before the date of cancellation.
2. Payment
2.1 The Company shall be entitled to require payment in advance of delivery for all Ordered Goods. Payment facilities are available via the Company's website during the order process.
2.2 Where the Company agrees to offer delivery to the Buyer in advance of payment, the Company may invoice the Buyer for the Ordered Goods on or at any time after the completion of delivery. The total value of all unpaid Goods may not exceed the Buyer's account limit as offered by the Company from time to time. Payment in advance of delivery may be required where the total value of the Ordered Goods exceeds the account limit offered by the Company.
2.3 The Buyer shall pay the Company's invoice in full and in cleared funds within 20 days of the end of the month in which the invoice was issued (eg payment by 20 February for invoices dated in January). Payment shall be made to the bank account nominated in writing by the Company. Time for payment is of the essence. The Buyer shall supply such remittance advice with each payment as the Company may direct from time to time (including reference and/or invoice numbers).
2.4 The Company may, in its sole discretion, offer early settlement discounts for invoices paid in full within 10 days of the invoice date. Such early settlement discounts are only effective if agreed by the Company in writing in advance of payment.
2.5 Without limiting the other rights and remedies the Company may have, where the Buyer fails to pay an invoice in accordance with these Conditions, or otherwise has an overdue account, or where the Company has the right to cancel a Binding Order pursuant to Condition 1.9 or is otherwise concerned about the Buyer's financial stability, the Company reserves the right to: (a) demand immediate payment of all outstanding amounts owed to the Company; (b) suspend further deliveries until full payment has been received; (c) reduce or withdraw payment options and early settlement discounts; and/or (d) charge interest payable by the Buyer on the overdue amount both before and after any court judgement at the rate of 8% above the Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount. The Buyer shall pay the interest together with the overdue amount.
2.6 The Buyer shall pay all amounts due in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
3. Delivery
3.1 The Company shall deliver the Ordered Goods via a courier to the Buyer's place of business or such other location as the parties may agree.
3.2 Delivery of the Ordered Goods shall occur upon receipt of a signature at the time and place of delivery or (if delivery is not signed for) upon completion of the unloading of the Ordered Goods at the place of delivery.
3.3 The dates for the delivery are approximate only and time is not of the essence. The Company will make all reasonable efforts to deliver the Ordered Goods on the agreed date, but it is acknowledged there may be unavoidable delays through the supply chain.
3.4 The Ordered Goods may be delivered in advance of any quoted delivery date upon the Company giving reasonable notice to the Buyer.
3.5 If the Buyer fails to accept delivery of the Ordered Goods then, except where such failure or delay is caused by the Company's material failure to comply with these Conditions: (a) delivery of the Ordered Goods shall be deemed to have been completed at 9.00am on the day scheduled for delivery; and (b) the Company shall store the Ordered Goods until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance). If the Ordered Goods have not been re-delivered within ten business days of the original date for delivery, the Company shall be entitled to resell or otherwise dispose of the Ordered Goods at its sole discretion.
3.6 If the Company delivers up to and including 5% more or less than the quantity of Ordered Goods the Buyer may not reject them, but on receipt of notice from the Buyer that the wrong quantity of Ordered Goods was delivered, a pro rata adjustment shall be made to the Company's invoice.
3.7 The Company may deliver the Ordered Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
4. Quality, Acceptance and Returns
4.1 The Company warrants that on delivery, the Goods shall: (a) conform in all material respects with their description; (b) be free from material defects in design, material and workmanship; and (c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
4.2 Subject to Condition 4.3, if the Buyer gives notice in writing to the Company within seven days of delivery of the Ordered Goods (as per Condition 3.2) that some or all of the Ordered Goods do not comply with the warranty set out in Condition 4.1; (b) the Company is given a reasonable opportunity of examining such Goods; and (c) the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company's cost, the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full. Any defects which come to the Buyer's attention after the initial seven day period, shall be subject to the Company's Returns Policy, as amended from time to time.
4.3 The Company shall not be liable for non-compliance with the warranty set out in Condition 4.1 if: (a) the Buyer makes any further use of such Goods after giving notice in accordance with Condition 4.2; (b) the defect arises because the Buyer failed to follow the Company's oral or written instructions as to the storage, use and preservation of the Goods or (if none were given) good trade practice regarding the same; (c) the defect arises as a result of the Company following any drawing, design or specification supplied by the Buyer; (d) the Buyer alters or repairs such Goods without the written consent of the Company; (e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or (f) the Ordered Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
4.4 These Conditions shall apply to any repaired or replacement Goods supplied by the Company.
5. Title and Risk
5.1 The Ordered Goods shall be at the risk of the Buyer from the point of delivery (as per Condition 3.2).
5.2 Notwithstanding delivery, title to the Ordered Goods shall not pass to the Buyer until the earlier of: (a) receipt of payment in full (in cash or cleared funds) for the Ordered Goods and any other Goods that the Company has supplied to the Buyer, in which case title to the Ordered Goods shall pass at the time of payment of all such sums; and (b) resale of the Ordered Goods by or on behalf of the Buyer, in which case title to the Ordered Goods shall pass to the Buyer at the time specified in Condition 5.4(b).
5.3 Until title to the Ordered Goods passes to the Buyer, the Buyer shall: (a) store the Ordered Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Company's property; (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Ordered Goods; (c) maintain the Ordered Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; (d) notify the Company immediately if it becomes subject to any of the events listed in Conditions 1.9(b) or 1.9(c); (e) give the Company such information relating to the Ordered Goods as the Company may require from time to time; (f) at the Company's request, deliver up all Ordered Goods in its possession that have not been resold, or irrevocably incorporated into another product; and (g) permit the Company to enter any premises where the Ordered Goods are stored (at any time and without notice) in order to inspect them or repossess them and hereby grants (and shall procure that relevant third parties shall grant) the Company, its agents and employees, an irrevocable licence to enter such premises for this purpose.
5.4 Subject to Condition 5.5, the Buyer may resell or use the Ordered Goods in the ordinary course of its business (but not otherwise) before the Company receives payment for the Ordered Goods. However, if the Buyer resells the Ordered Goods before that time: (a) it does so as principal and not as the Company's agent; and (b) title to the Ordered Goods shall pass from the Company to the Buyer immediately before the time at which resale by the Buyer occurs.
5.5 If before title to the Ordered Goods passes to the Buyer, the Buyer becomes subject to any of the events listed in Conditions 1.9(b) or 1.9(c), then, without limiting any other right or remedy the Company may have the Buyer's right to resell the Ordered Goods or use them in the ordinary course of its business ceases immediately.
6. Liability
6.1 Nothing in these Conditions shall limit or exclude the Company's liability for: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or (d) any liability if and to the extent that it is not permissible in law for such liability to be limited or excluded.
6.2 Subject to Condition 6.1: (a) the Company shall under no circumstances whatsoever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the supply of Goods, a Binding Order and/or these Conditions; and (b) the Company's total liability to the Buyer in respect of all other losses arising under or in connection same, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid for the Ordered Goods contained in the relevant Binding Order.
6.3 Except as provided in Condition 4, the Company shall have no liability to the Buyer in respect of non-compliance with the warranty set out in Condition 4.1.
6.4 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded.
6.5 To the extent that any Goods are to be manufactured in accordance with a specification supplied by the Buyer or otherwise made-to-order pursuant to the Buyer's instructions, the Buyer shall indemnify and keep indemnified the Company, its personnel and sub-contractors from and 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 Company, its personnel and/or sub-contractors in connection with any actual or alleged infringement of a third party’s intellectual property rights or other proprietary rights arising out of or in connection with the use of the Buyer's specification and/or compliance with the Buyer's instructions.
6.6 Neither party shall be in breach of these Conditions nor liable for delay in performing, or failure to perform, any of its obligations under these Conditions if such delay or failure is due to any circumstance beyond the reasonable control of the affected party, including, but not limited to, Acts of God, war, civil unrest, riot, strike, lock-out, acts of civil or military authorities, fire, flood, earthquake, shortage of supply or the acts or omissions of the unaffected party. If the period of delay or non-performance continues for three months, the unaffected party may cancel the relevant Binding Order by serving one week's written notice to the affected party.
7. SECURITY AND DATA PROTECTION
7.1 Each party shall for the duration of this Agreement comply with the provisions of the Data Protection Act 1998 (including the Data Protection Principles set out in that Act) and from 25th May 2018 the General Data Protection Regulation and any similar or analogous laws, regulatory requirements or codes of practice (the ‘Data Protection Legislation’) governing the use, storage or transmission of the Buyer’s Personal Data (for clarity, this is Personal Data provided by the Buyer pursuant to the performance of this Agreement by the parties) and shall not do or permit anything to be done which might cause or otherwise result in breach of the same. For clarity this clause 7 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
7.2 The Company acknowledges that for the purposes of the Data Protection Legislation, it is the Data Processor and the Buyer is the Data Controller of any the Buyer’s Personal Data provided to it by the Buyer or obtained by it as part of its obligations under this Agreement. For clarity Data Controller, Data Processor, and Personal Data have the meanings as defined in the Data Protection Legislation. In its capacity as Data Processor, the Company undertakes to use reasonable endeavours to keep the Buyer’s Personal Data secure to ensure that the Buyer is not in breach of its obligations under the current or any future Data Protection Legislation.
7.3 Without limitation to clauses 7.1 and 7.2, the Company agrees to:
7.3.1 to ensure a level of security appropriate to the nature of the Personal Data to be protected;
7.3.2 to take appropriate steps so that the Company’s employees and subcontractors who have access to the Buyer’s Personal Data comply with this clause 7;
7.3.3 to comply with the Buyer’s reasonable instructions pursuant to the Data Protection Legislation in relation to the collection, processing and disposal of any of the Buyer’s Personal Data.
7.4 Without limitation to clauses 7.1 and 7.2 the Company shall, in relation to any of the Buyer’s Personal Data processed in connection with the performance by the Company of its obligations under this Agreement:
7.4.1 process that Buyer’s Personal Data only on the written instructions of the Buyer which is to be provided within reasonable notice unless the Company is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Company to process the Buyer’s Personal Data (the ‘Applicable Laws’);
7.4.2 ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of the Buyer’s Personal Data and against accidental loss or destruction of, or damage to the Buyer’s Personal Data, having regard to the state of technological development and the cost of implementing any measures (those measures may include measures appropriate under the Data Protection Legislation);
7.4.3 ensure that all personnel who have access to and/or process the Buyer’s Personal Data are obliged to keep the Buyer’s Personal Data confidential;
7.4.4 not transfer any of the Buyer’s Personal Data outside of the European Economic Area unless the prior written consent of the Buyer has been obtained and the following conditions are fulfilled:
(i) the Buyer has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject has enforceable rights and effective legal remedies;
(iii) the Company provides an adequate level of protection to any of the Buyer’s Personal Data that is transferred; and
(iv) the Company complies with reasonable instructions notified to it in advance by the Buyer with respect to the processing of the Buyer’s Personal Data;
7.4.5 assist the Buyer, at the Buyer’s cost, in responding to any request from a Data Subject and in ensuring compliance with each party’s obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
7.4.6 notify the Buyer without undue delay on becoming aware of a breach of the Buyer’s Personal Data;
7.4.7 at the written direction of the Buyer, delete or return the Buyer’s Personal Data and copies thereof to the Buyer on termination or expiry of the Agreement unless required by Applicable Law to store the Buyer’s Personal Data; and
7.5 The Buyer consents to the Company appointing third-party processors of the Buyer’s Personal Data under this Agreement. As between the Buyer and the Company, The Buyer authorises third party contractors to process any of the Buyer’s Personal Data (as defined in the Data Protection Legislation) provided that the third party contractor’s agreement with the Company is:
7.5.1 on terms similar to these set out in this Agreement; and
7.5.2 terminated automatically on termination of this Agreement.
7.6 Either party may propose at any time and on not less than 30 working days’ notice and the other party shall not unreasonably object to, revisions to this clause 7. Both parties shall maintain complete and accurate records and information to demonstrate its compliance with this clause 7. Each party agrees to provide evidence to each other in the event that the other party may reasonably request and upon being given sufficient notice, to demonstrate a party’s compliance with the current Data Protection Legislation.
8. General
8.1 It is agreed and acknowledged that the supply of Goods pursuant to these Conditions is for the purpose of the onward sale of the Goods by the Buyer direct to retail consumers and that the Company has appointed the Buyer as a retailer of the Goods due to the Buyer's high standards of customer service and retail experience. The Goods are not intended for the onward resale to third party wholesalers, distributors, retailers or other third party businesses. The Company reserves its rights to cease trading with the Buyer and/or impose different terms of supply should the Buyer seek to resell any Goods to such third party businesses without the Company's prior written consent.
8.2 Unless expressly stated otherwise, a reference to a statute or statutory provision is a reference to legislation in force in England as amended, extended or re-enacted from time to time and shall include reference to all subordinate legislation made from time to time. Any words following the terms "including", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. The headings in these Conditions are for ease of reference only and shall not affect their interpretation.
8.3 Nothing in these Conditions shall constitute the creation, establishment or relationship of partnership, joint venture or employer and employee between the parties. Neither party shall have the authority, and shall not hold itself out, or permit any person to hold itself out, as being authorised to bind the other party in any way, and shall not do any act which might reasonably create the impression that it is so authorised.
8.4 The Buyer agrees and acknowledges that all copyright, design rights, trade marks and other intellectual property rights subsisting in and/or relating to the Goods and/or the Company's business (including in any brochures, the Company website and product designs and descriptions) vest in and shall be owned and remain at all times absolutely and unconditionally owned by the Company. Any use of the Company's intellectual property rights by the Buyer is subject to the prior written permission of the Company.
8.5 If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any such modification to or deletion of a provision or part-provision shall not affect the validity and enforceability of the rest of these Conditions.
8.6 No failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall constitute a waiver or abandonment 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.
8.7 These Conditions (and any document expressly referred to in them) constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to the supply of Goods to the Buyer.
8.8 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Conditions.
8.9 The Company may at any time, without the consent of the Buyer, assign, transfer, mortgage, charge, subcontract or otherwise deal in any manner with all or any of its rights or obligations under these Conditions. The Buyer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or otherwise deal in any manner with any or all of its rights and obligations under these Conditions without the prior written consent of the Company.
8.10 The terms of these Conditions are not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999.
8.11 No variation to these Conditions shall be effective unless agreed in writing and signed by an authorised representative of each party.
8.12 These Conditions and each Binding Order and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them, their subject matter or formation shall be governed by and construed in accordance with English law. 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 these Conditions and any Binding Order, their subject matter or formation.
May 2018