Terms & Conditions

TERMS AND CONDITIONS FOR THE SALE OF GOODS

  1. Definitions and interpretation
    • In these Conditions the following definitions apply:
  • Applicable Law: means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national;
  • Bribery Laws: means the Bribery Act 2010 and all Applicable Laws in connection with bribery or anti-corruption and associated guidance published by the Secretary of State for Justice under the Bribery Act 2010;
  • Business Day: means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in England;
  • Conditions: means the Supplier’s terms and conditions of sale set out in this document;
  • Confidential Information: means any commercial, financial or technical information, information relating to the Goods, plans, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;
  • Contract: means the agreement between the Supplier and the Customer for the sale and purchase of the Goods incorporating these Conditions and the Order, and including all its schedules, attachments, annexures and statements of work;
  • Customer: means the named party in the Contract which has agreed to purchase the Goods from the Supplier and whose details are set out in the Order;
  • Force Majeure: means an event or sequence of events beyond a party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving the Supplier’s or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;
  • Goods: means the goods l set out in the Order and to be supplied by the Supplier to the Customer in accordance with the Contract;
  • Intellectual Property Rights: means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in software, rights in goodwill, rights in Confidential Information, rights to invention, rights to sue for passing off, domain names and all other intellectual property rights and similar rights whether registered or unregistered and in any part of the World:
    • whether registered or not
    • including any applications to protect or register such rights
    • including all renewals and extensions of such rights or applications
    • whether vested, contingent or future
    • to which the relevant party is or may be entitled, and
    • in whichever part of the world existing;
  • Location: means the address or addresses for delivery of the Goods as set out in the Order;
  • Order: means an order for the Goods from the Supplier placed by the Customer in substantially the same form set out in the Schedule overleaf ;
  • Price: has the meaning given in clause 3.1;
  • Supplier: means 4U (Retail) Group Limited a company incorporated in England and Wales with company number 12560128 and with its registered office at 26 Middlemarsh Street, Poundbury, Dorchester, DT1 3FD;
  • VAT: means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Goods; and
    • In these Conditions, unless the context requires otherwise:
      • a reference to the Contract includes these Conditions and the Order;
      • any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;
      • words in the singular include the plural and vice versa;
      • any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
      • a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form;
      • a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and includes all subordinate legislation made under it from time to time;
      • a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.
  1. Application of these conditions
    • These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
    • No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract.
    • No variation of these Conditions or to an Order or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Supplier.
    • Each Order by the Customer to the Supplier shall be an offer to purchase the Goods subject to the Contract including these Conditions.
    • The Supplier may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Goods shall arise, until the earlier of:
      • the Supplier’s written acceptance of the Order; or
      • the Supplier dispatching the Goods or notifying the Customer that they are available for collection (as the case may be).
    • Marketing and other promotional material relating to the Goods are illustrative only and do not form part of the Contract.
  2. Price
    • The price for the Goods shall be as set out in the Order (the Price).
    • The Prices are exclusive of delivery and VAT, which shall be charged in addition.
    • For an Order of £500 or more, the Price for the Order will be inclusive of the costs of delivery.
    • The Customer shall pay any applicable VAT to the Supplier on receipt of a valid VAT invoice.
    • The Supplier may increase the Prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to the Supplier of supplying the relevant Goods.
  3. Payment
    • The Supplier shall invoice the Customer for the Goods, partially or in full, at any time following acceptance of the Order.
    • The Customer shall pay all invoices unless otherwise agreed, in full without deduction or set-off, in cleared funds within 14 Business Days of the date of each invoice.
    • Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:
      • the Supplier may, without limiting its other rights, charge interest on such sums in accordance with the Late Payment of Commercial Debts (Interest) Act 1998;
      • interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment; and
      • the Supplier may recover from the Customer any costs and expenses incurred by the Supplier arising from the recovery from the Customer of any sums that are not paid in full by the due date.
  1. Credit limit

The Supplier may set and vary credit limits from time to time and withhold all further supplies if the Customer exceeds such credit limit.

  1. Delivery
    • The Customer acknowledges and agrees that the Goods shall be made to order and time of delivery of the Goods is not of the essence. The Supplier will contact the Customer with an estimated delivery date and shall use its reasonable endeavours to meet delivery dates but such dates are indicative only
    • The Goods shall be deemed delivered on arrivalonly of the Goods at the Location by the Supplier or its nominated carrier (as the case may be).
    • The Supplier may deliver the Goods in instalments. Any delay or defect in an instalment shall not entitle the Customer to cancel any other instalment.
    • The Customer shall not be entitled to reject a delivery of the Goods on the basis that an incorrect volume of the Goods has been supplied.
    • Delivery of the Goods shall be accompanied by a delivery note stating:
      • the date of the Order;
      • the product numbers, type and quantity of the Goods in the consignment; and
      • any special handling instructions.
    • The Supplier shall not be liable for any delay in or failure of delivery caused by:
      • the Customer’s failure to make the Location available;
      • the Customer’s failure to provide the Supplier with adequate instructions for delivery or otherwise relating to the Goods;
      • Force Majeure.
    • If the Customer fails to accept delivery of the Goods the Supplier shall store and insure the Goods pending delivery, and the Customer shall pay all costs and expenses incurred by the Supplier in doing so.
    • If 5 Business Days following the due date for delivery or collection of the Goods, the Customer has not taken delivery of or collected them, the Supplier may resell or otherwise dispose of the Goods without any obligation or liability to the Customer, except as provided for in clauses 6.8.1 and 6.8.2. The Supplier shall:
      • deduct all storage charges at the Supplier’s then-applicable rates and reasonable costs of resale; and
      • account to the Customer for any excess of the resale price over, or invoice the Customer for any shortfall of the resale price below, the Price paid by the Customer for the Goods.
  1. Risk AND TITLE
    • Risk in the Goods shall pass to the Customer on delivery.
    • Title to the Goods shall pass to the Customer once the Supplier has received payment in full and cleared funds for the Goods and all the Goods supplied to the Customer under any Contract.
    • Until title to the Goods has passed to the Customer, the Customer shall:
      • hold the Goods as bailee for the Supplier;
      • take all reasonable care of the Goods and keep them in the condition in which they were delivered;
      • not remove or alter any mark on or packaging of the Goods; and
      • inform the Supplier immediately if it becomes subject to any of the events or circumstances set out in clauses 14.1.1 to 14.2.
    • If, at any time before title to the Goods has passed to the Customer, the Customer informs the Supplier, or the Supplier reasonably believes, that the Customer has or is likely to become subject to any of the events specified in clauses 14.1.1 to2, the Supplier may:
      • require the Customer at the Customer’s expense to re-deliver the Goods to the Supplier; and
      • if the Customer fails to do so promptly, enter any premises where the Goods are stored and repossess them.
  1. Warranty
    • The Supplier warrants that the Goods shall:
      • conform in all material respects to the Order;
      • be free from material defects in design, material and workmanship; and
      • be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
    • As the Customer’s sole and exclusive remedy, the Supplier shall, at its option, repair, replace, or refund the Price of any of the Goods that do not comply with clause 8.1, provided that the Customer:
      • gives the Supplier a reasonable opportunity to examine the defective Goods; and
      • returns the defective Goods to the Supplier at the Customer’s
    • The provisions of these Conditions, including the warranties set out in clause 8.1, shall apply to any of the Goods that are repaired or replaced with effect from the date of delivery of the repaired or replaced Goods.
    • The Supplier shall not be liable for any failure of the Goods to comply with clause 8.1 to the extent caused by the Customer’s failure to comply with the Supplier’s instructions in relation to the Goods, including any instructions on installation, operation, storage or maintenance.
    • Except as set out in this clause 8 the Supplier gives no warranties and makes no representations in relation to the Goods and all warranties and conditions (including the conditions implied by ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
  2. COMPLIANCE
    • For the purposes of this clause 9 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
    • Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure all of its personnel and all others associated with it involved in performing the Contract so comply.
    • Without limitation to clause 9.2, neither party shall make or receive any bribe (which term shall be construed in accordance with the Bribery Act 2010) or other improper payment or advantage or allow any such bribe or improper payment or advantage to be made or received on its behalf, either in the United Kingdom or elsewhere and shall implement and maintain adequate procedures to ensure that such bribes or improper payments or advantages are not made or received directly or indirectly on its behalf.
    • The Customer shall immediately notify the Supplier as soon as it becomes aware of a breach or possible breach by the Customer of any of the requirements in this clause 9.
    • The Supplier and the Customer shall each comply with the Modern Slavery Act 2015.
  3. Limitation of liability
    • The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 10.
    • Subject to clause 10.5, the Supplier’s total liability shall not exceed the sum of the total amount payable by the Customer for the Goods to which the liability relates.
    • Subject to clause 10.5, the Supplier shall not be liable for consequential, indirect or special losses.
    • Subject to clause 10.5, the Supplier shall not be liable for (in each case whether direct or indirect) loss of profit, loss of contract, loss of opportunity or harm to reputation or loss of goodwill.
    • Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
      • death or personal injury caused by negligence;
      • fraud or fraudulent misrepresentation; or
      • any other losses which cannot be excluded or limited by Applicable Law.
  1. Intellectual property rights
    • The Supplier retains, and the Customer shall acquire no interest in, any Intellectual Property Rights in any of the Goods.
  2. Confidentiality and announcements
    • The Customer shall keep confidential all Confidential Information of the Supplier and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
      • any information which was in the public domain at the date of the Contract;
      • any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
      • any information which is independently developed by the Customer without using information supplied by the Supplier; or
      • any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
    • This clause 12 shall remain in force in perpetuity.
  3. Force majeure

Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such event causes a delay or failure in performance and when it ceases to do so.

  1. Termination
    • The Supplier may terminate the Contract or any other contract which it has with the Customer at any time by giving notice in writing to the Customer if:
      • the Customer commits a material breach of the Contract and such breach is not remediable;
      • the Customer commits a material breach of the Contract which is not remedied within 14 Business Days of receiving written notice of such breach;
      • the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid 30 days after the date that the Supplier has given notification to the Customer that the payment is overdue.
    • The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if the Customer suffers or is subject to any event of insolvency in any jurisdiction in which it operates.
    • If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle the Supplier to terminate the Contract under this clause 14, it shall immediately notify the Supplier in writing.
    • Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Supplier at any time up to the date of termination.
  2. Notices
    • Any notice or other communication given by a party under these Conditions shall:
      • be in writing and in English;
      • be signed by, or on behalf of, the party giving it (except for notices sent by email); and
      • be sent to the relevant party at the address set out in the Contract.
    • Notices may be given, and are deemed received:
      • by hand: on receipt of a signature at the time of delivery; or
      • by Royal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting.
    • Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with clause 15.1 and shall be effective:
      • on the date specified in the notice as being the date of such change; or
      • if no date is so specified, ten Business Days after the notice is deemed to be received.
    • This clause 15 does not apply to notices given in legal proceedings or arbitration.
  3. Entire agreement
    • Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract . No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
    • Nothing in these Conditions purports to limit or exclude any liability for fraud.
  4. Variation

No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, each party.

  1. Assignment
    • The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Supplier’s prior written consent.
  2. Severance
    • If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
    • If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
  3. Waiver
    • No failure, delay or omission by the Supplier in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
    • No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Supplier shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Supplier.
  4. Third party rights
    • A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
  5. Governing law AND JURISDICTIOn
    • The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
    • The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).

 

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