1.1. ‘Buyer’ means the person and/or corporate entity who submits an Order to the Seller;
1.2. ‘Delivery Charges’ means the charges for Delivery as notified to the Buyer by the Seller pursuant to clause 4 and as confirmed in the relevant Order Confirmation
1.3. ‘Delivery Date’ means the date specified for Delivery in the Order Confirmation;
1.4. ‘Delivery’ means delivery to the address specified for delivery by the Buyer in the Order;
1.5. ‘Goods’ means the Souvenir Goods, the Trade Promotional Goods and / or the Printed Goods which the Buyer has agreed to buy from the Seller, as more particularly described in the Order Confirmation;
1.6. ‘Intellectual Property Rights’ means rights in the Intellectual Property;
1.7. ‘Intellectual Property’ means all vested and future intellectual property including but not limited to copyright, trade marks, service marks, design rights (whether registered or unregistered), patents, know-how, trade secrets, inventions, get-up, database rights and any applications or registrations for the protection of these rights and all renewals and extensions thereof existing in any part of the world whether now known or in the future created;
1.8. ‘Order’ means the Buyer’s order for Goods which shall detail amongst other things the Goods ordered and the address for Delivery;
1.9. ‘Order Confirmation’ means the order confirmation which shall confirm the details of the Order, and which shall state the Price payable for the Goods stated therein, the Delivery Date, any Print Costs, Origination Charges and Delivery Charges
1.10. ‘Origination Charges’ means the charges levied by the Seller in respect of equipment required for Printing including but not limited to sourcing and/or making screens and/or plates as notified to the Buyer by the Seller pursuant to Clause 4 and as confirmed in the relevant Order Confirmation.
1.11. ‘Price’ means the price payable for the Goods as stated in the Seller’s latest price list as at the date of the relevant Order and as confirmed in the relevant Order Confirmation and as may be varied pursuant to clause 4 plus any Delivery Charges, Print Costs and / or Origination Charges;
1.12. ‘Print Costs’ means the cost to the Buyer in respect of Printing as notified to the Buyer pursuant to clause 4 and as confirmed in the relevant Order Confirmation.
1.13. ‘Printed Goods’ means Goods in respect of which Printing has been performed
1.14. ‘Printing’ means the printing on Goods of text, pictures and/or logos including but not limited to business names, logos and internet addresses
1.15. ‘Samples’ means samples of Goods provided by the Seller to the Buyer;
1.16. ‘Seller’ means Carole Group Limited (CRN: 02149994) whose registered office is situate at Goldoak House, 5 Oaklands Park, Fishponds Road, Wokingham, Berkshire, RG41 2FD;
1.17. ‘Specification’ means the specification of the Goods as stated in the Souvenir Catalogues or Trade Promotional Catalogues (as appropriate);
1.18. ‘Souvenir Catalogues’ means the Seller’s latest catalogue detailing its range of Souvenir Goods;
1.19. ‘Souvenir Goods’ means Goods supplied to retail outlets for sale to consumers and which are more particularly described in the Souvenir Catalogues;
1.20. ‘Trade Promotional Catalogues’ means the Seller’s latest catalogue detailing its range of Trade Promotional Goods;
1.21. ‘Trade Promotional Goods’ means Goods supplied to distributors for sale to third parties for promotional purposes which are more particularly described in the Trade Promotional Catalogues.
1.22. ‘Working Days’ means any day other than a Saturday, Sunday, bank or public holiday in England.
2.1. These terms and conditions together with the Order Confirmation and any Price Notifications comprise the entire agreement between the Buyer and the Seller in respect of all contracts for the sale of Goods by the Seller to the Buyer (‘Agreement’).
2.2. The terms of this Agreement shall prevail over any terms put forward by the Buyer and (except as provided for in 2.3 below) no conduct of the Seller shall constitute acceptance of any terms put forward by the Buyer.
2.3. No employee or agent of the Seller shall have any authority to vary the terms of this Agreement or to make any representation on behalf of the Seller as to their effect. No addition to or variation of these terms shall be binding on the Seller unless such addition or variation is in writing and is signed by a director of the Seller.
2.4. Unless acceptance occurs at an earlier time, acceptance of Delivery shall be deemed conclusive evidence of the Buyer’s acceptance of the terms of this Agreement.
3.1. The Buyer shall submit an Order to the Seller. The Order shall constitute an offer by the Buyer to purchase the Goods for the Price subject to the terms contained in this Agreement.
3.2. Where an Order will be subject to Origination Charges, Delivery Charges and / or Print Costs the Seller shall notify the Buyer of the same pursuant to clause 4.
3.3. Where the Seller is unable to supply the Goods stated in an Order it may contact the Buyer and offer alternative Goods (‘Alternative Goods’). Where the Buyer confirms its acceptance of the Alternative Goods the relevant Order shall be deemed to be amended accordingly.
3.4. If the Seller accepts an Order (as may be deemed to be amended pursuant to clauses 3.3 and / or clause 4), it shall notify the Buyer of its acceptance within 7 days of the latter to occur of (i) receipt of the relevant Order and (ii) deemed amendment of the relevant Order pursuant to clause 3.3 and / or clause 4 (where relevant) by issuing an Order Confirmation.
3.5. Where no Order Confirmation is issued within the 7 day period detailed in clause 3.3, the Seller shall be deemed to have declined to provide the Goods detailed in the relevant Order Confirmation.
3.6. Upon issuing an Order Confirmation a binding agreement shall come into existence between the Buyer and the Seller and the Seller agrees that it shall, in consideration of the Buyer agreeing to pay the Price, supply the Goods stated in the Order Confirmation subject to the terms of this Agreement
3.7. In the event of a conflict between the contents of an Order and an Order Confirmation, the terms stated in the Order Confirmation shall prevail.
4.1. Unless otherwise stated in the Order Confirmation, the Souvenir Catalogues, the Trade Promotional Catalogues and/or the Seller’s latest price list the Price shall be exclusive of VAT (which shall be charged at the prevailing rate) and all other taxes and duties.
4.2. The Price is, in respect of Souvenir Goods, inclusive of Delivery Charges unless otherwise notified to the Buyer pursuant to clause 4.4.
4.3. The Price is, in respect of Trade Promotional Goods, exclusive of Delivery Charges, which shall be notified to the Buyer pursuant to clause 4.4 unless otherwise stated in the relevant Order Confirmation.
4.4. The Seller shall notify the Buyer of any proposed Delivery Charges on receipt of an Order and where accepted by the Buyer the relevant Order shall be deemed to be amended accordingly and such Delivery Charges shall be confirmed in the relevant Order Confirmation, provided that where the Buyer does not accept the Delivery Charges, the Seller shall be under no obligation to issue an Order Confirmation.
4.5. Prices stated in the Souvenir Catalogues are inclusive of Print Costs in a single colour print and in one position and Origination Charges unless otherwise detailed in the Souvenir Catalogues, the Seller’s latest price list and/or notified to the Buyer pursuant to clause 4.7
4.6. Prices stated in the Trade Promotional Catalogues are inclusive of Print Costs in a single colour print and in one position unless otherwise detailed in the Trade Promotional Catalogues, the Seller’s latest price list and/or notified to the Buyer pursuant to clause 4.7.
4.7. The Seller shall notify the Buyer of any Print Costs and/or Origination Charges on receipt of an Order and where accepted by the Buyer the relevant Order shall be deemed to be amended accordingly and such Print Costs and/or Origination Charges shall be confirmed in the relevant Order Confirmation provided that where the Buyer does not accept the Print Costs and/or the Origination Charges the Seller shall be under no obligation to issue an Order Confirmation.
4.8. In the event of a conflict between the Price stated in the Seller’s latest price list and the Price stated in the Order Confirmation, the Price stated in the Order Confirmation shall prevail.
4.9. The Seller reserves the right to amend the Price stated in an Order Confirmation at any time between the date of such Order Confirmation and the Delivery Date as a result of external factors.
4.10. Where the Seller wishes to vary the Price in accordance with clause 4.9 it shall notify the Buyer of the proposed changes in writing (‘Price Notification’). The Buyer shall have a period 10 days from the date of such Price Notification (‘Notification Period’) to object in writing to such increases (‘Objection Notice’).
4.11. Where an Objection Notice is received by the Seller during the Notification Period the Buyer shall be deemed to have cancelled the part of the relevant Order to which the Price Notification relates, and the relevant Order Confirmation shall be deemed to be amended accordingly.
4.12. Where no Objection Notice is received during the Notification Period, the Buyer shall be deemed to have accepted the revised Price and the relevant Order Confirmation shall be deemed to be amended accordingly.
5.1. Delivery of the Goods shall be made to the address stated in the Order on the Delivery Date and the Seller shall not be obliged to deliver to any other address or on any other date.
5.2. The Seller will endeavour to deliver the Goods by the Delivery Date but it is agreed that time shall not be of the essence in relation to Delivery and accordingly the Buyer shall not be entitled to terminate this Agreement by reason of the Seller’s failure to deliver the Goods by the Delivery Date.
5.3. The Buyer agrees that the Goods may be delivered in advance of the Delivery Date (whether in instalments or in full) and the Buyer shall make all necessary arrangements to take delivery of the Goods whenever they are tendered for Delivery.
6.1. Payment of the Price, Origination Charges, Print Costs, Delivery Charges and VAT and any other applicable taxes and duties (as stated in the relevant Order Confirmation) shall be due within 30 days of the date of the relevant invoice (‘the Due Date’) and time for payment shall be of the essence.
6.2. The Buyer agrees that it shall pay interest at a rate of 4% above the prevailing base rate of HSBC Bank from time to time in force from the Due Date until payment in full of any invoice not paid in full by the Due Date.
7.1. The Seller warrants that the Goods supplied will, subject to the provisions of clause 13, at the time of Delivery correspond to the description given by the Seller in the Souvenir Catalogues/ or Trade Promotional Catalogues (as appropriate) and the Specification (if any).
7.2. All other warranties whether express or implied are hereby excluded to the fullest extent permitted by law.
8.1. Claims in respect of damage caused to Goods in transit must be notified, upon receipt, to both the courier and the Seller, and a note of such damage must be made on the courier’s delivery confirmation. The Buyer agrees that it shall retain damaged Goods and packaging for inspection and further agrees that it shall log all such defects with the Seller and shall state the returns number provided by the Seller on all returned cartons and/or packages in which Goods are returned.
8.2. The Buyer shall be deemed to have accepted the Goods after having had a reasonable time to inspect the same (which shall not be in excess of 72 hours).
8.3. After acceptance, the Buyer shall not be entitled to reject the Goods.
8.4. Subject to clauses 8.1, 8.2 and 8.3, where the Buyer wishes to reject Goods it shall contact the Seller and shall state the returns number provided by the Seller on all packages and/or cartons in which Goods are returned.
8.5. The Seller reserves the right to refuse to issue refunds and/or replacement Goods where no returns number is stated on packages and / or cartons in which Goods are returned.
8.6. Where the Buyer rejects any Goods then the Buyer shall have no further rights whatsoever in respect of the supply to the Buyer of such Goods or the failure by the Seller to supply Goods in conformity with this Agreement.
9.1. The Seller shall be entitled to deliver the Goods by instalments of any size and in any order.
9.2. In respect of Printed Goods only, if the Seller delivers more or less than the quantity of Goods stated in the Order Confirmation and such discrepancy in the quantity of Goods delivered is equal to or not greater than plus or minus 5% of the total order quantity as stated in the relevant Order Confirmation (“Acceptable Quantity”) the Buyer shall accept the same and shall have no recourse against the Seller for short delivery and shall not be obliged to pay the Seller for excess delivery.
9.3. Where in respect of Goods other than Printed Goods delivery is of a quantity other than the quantity stated in the Order Confirmation or in respect of Printed Goods where the Seller does not deliver an Acceptable Quantity then:
9.3.1. The Seller shall have no liability to the Buyer in respect of any excess or shortfall unless the Buyer gives the Seller notice of the excess or shortfall within 2 Working Days of Delivery, in which case the Seller shall have the right at its own cost to verify the quantity. If the Buyer does give notice:
22.214.171.124. in the case of excess Goods having been delivered the Seller may in its discretion either:
126.96.36.199.1. make arrangements for the excess to be returned to the Seller at the Seller’s expense; or
188.8.131.52.2. increase the value of the Goods stated on the Seller’s invoice by the same proportion as the excess bears to the quantity of Goods stated in the Order Confirmation.
184.108.40.206. in the case of short delivery the Seller may in its discretion either:
220.127.116.11.1. make good the shortfall by one or more further deliveries; or
18.104.22.168.2. reduce the value of the Goods stated on the Seller’s invoice by the same proportion as the shortage bears to the quantity of Goods stated in the Order Confirmation and issue a credit note in respect of such reduction.
22.214.171.124. Where any such excess comes to the Seller’s attention, it shall, within 12 months of the Delivery Date, notify the Buyer and the Seller shall invoice the Buyer by way of additional invoice for such excess.
9.4. The Buyer shall not be entitled to reject any delivery on the grounds of any excess or short delivery but shall pay the Seller’s invoice or, where the Seller exercises its discretion referred to in clause 126.96.36.199.2 above, the reduced invoice value in accordance with that provision.
9.5. The Seller shall not be liable for any losses, costs, claims and / or expenses caused and/or suffered by the Buyer by reason of excess or short delivery.
9.6. Save as detailed in this clause 9 the Seller shall have no liability to the Buyer in respect of any excess or shortfall.
10.1. Goods shall be at the Buyer’s risk from Delivery.
10.2. At no time shall property in the Goods pass from the Seller to the Buyer unless and until all of the Seller’s invoices in respect of which payment has become due in accordance with clause 6.1 plus any interest due to the Seller in accordance with clause 6.2 has been paid in full. The Buyer shall hold all Goods as bailee for Seller until title has passed.
10.3. Where the Buyer sells any Goods held as bailee for the Seller in accordance with clause 10.2, the proceeds of sale shall be held on trust for the Seller absolutely until settlement of all invoices in accordance with clause 10.2
10.4. The Buyer shall upon request by the Seller deliver up all Goods in its possession in respect of which title has not passed in accordance with clause 10.2. If the Buyer fails to do so the Seller may enter upon any premises owned, occupied or controlled by the Buyer where the Goods are situated and repossess such Goods.
10.5. The Buyer hereby agrees that (unless otherwise stated in the Order Confirmation) all tools, blocks, stencils, plates and artwork created used and/or purchased and/or commissioned in relation to the Goods shall be and remain the absolute property of the Seller, notwithstanding that the Buyer may have been charged for the same by the Seller.
11.1. If the Buyer cancels an Order after an Order Confirmation has been issued, then the Buyer agrees that it shall reimburse the Seller on demand and on an indemnity basis in respect of all costs and expenses incurred by the Seller up until receipt of the Buyer’s notice of cancellation.
11.2. The Seller may cancel this Agreement at any time before Delivery by giving written notice to the Buyer without liability to the Buyer.
12.1. The Buyer agrees that Samples are provided on an inspection basis and are the property of the Seller. The Seller reserves the right to charge for samples at the relevant Sample price, details of which can be obtained from the Seller on request.
12.2 (Trade Only) The buyer understands there will be a charge for preproduction samples, details of which can be obtained from the Seller on request.
12.3 (Retail Only) The buyer agrees that samples are to be charged if selected from our Premium Range. If the buyer returns goods to the seller the sample will be refunded within 10 days.
12.4 (Retail Only) Pre-production costs will be covered by the seller. The buyer agrees that if an order is cancelled no fault of the Carole Group (Seller) then a charge of £100 will be added to the buyers account. Maximum of 3 changes per sample before standard charge.
13.1. Save as otherwise stated in an Order Confirmation, the Buyer accepts that the colour and/or size of Goods may vary (within industry accepted tolerances) from that stated in the Specification.
13.2. Where Goods vary from the Specification in accordance with clause 13.1, the Seller shall not be entitled to reject the same.
14.1. Save in respect of claims for death or personal injury arising from the Seller’s negligence, in no event will the Seller be liable for any damages resulting from loss of profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission of the Seller whether such damages were reasonably foreseeable or actually foreseen.
14.2. The Seller’s maximum liability to the Buyer for any cause whatsoever (whether in the form of a refund or otherwise) will be for direct costs and damages only, and will be limited to £1,000,000 (one million pounds).
14.3. In no event shall the Seller be liable to the Buyer for any losses whatsoever (whether lost future revenues, lost future profits, expenditure incurred to no benefit, or otherwise) suffered or incurred by the Buyer solely or substantially because this Agreement has been terminated.
14.4. All liability that is not expressly assumed in this Agreement hereby excluded to the fullest extent permitted by law. These limitations will apply regardless of the form of action, whether under statute, in contract, tort, including negligence, or any other form of action.
14.5. Nothing in this Agreement shall exclude or limit liability for fraudulent misrepresentation.
14.6. Both parties acknowledge and agree that the limitations and exclusions of liability set out in this clause 14 are reasonable and have been agreed taking into account the commercial value of this Agreement to each party and the commercial standing of each party.
15.1. The Buyer hereby indemnifies and agrees to hold harmless the Seller for any and all financial liability including but not limited to all costs, claims, damage awards and expenses incurred and / or suffered by the Seller as a result of and / or in relation to any claim and/or anticipated claim that the Goods and / or Printing supplied and / or performed by the Seller pursuant to an Order infringe another party’s Intellectual Property Rights.
16.1. Either party may terminate this Agreement where it has notified the other that it is in breach of one or more of its terms and the other has failed to remedy the same within 7 days of the date of such notification.
16.2. If the Buyer fails to make payment for the Goods in accordance with the terms of this Agreement or the buyer ceases or threatens to cease carrying on business or commits any other breach of this Agreement or if any distress or execution shall be levied upon any of the Buyer's goods or if the Buyer offers to make any arrangement with its creditors or if any bankruptcy petition is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a receiver, administrator, liquidator, administrative receiver or manager shall be appointed over the whole or any part of the Buyer's business or assets or if the Buyer shall suffer any analogous proceedings under foreign law all sums outstanding in respect of the Goods shall become payable immediately and the Seller may in its absolute discretion terminate this Agreement and without prejudice to any other rights which it may have:
16.2.1. suspend all future deliveries of Goods to the Buyer and/or terminate the Agreement without liability upon its part; and/or
16.2.2. exercise any of its rights pursuant to clause 10. 16.3. The Buyer shall be entitled to terminate this Agreement by giving notice if the Seller enters into any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or becomes subject to an administration order or goes into liquidation otherwise for the purpose of amalgamation or reconstruction, or the Seller ceases or threatens to cease to carry on business.
17.1. Any notice under or in connection with this Agreement shall be in writing and shall be served by first class post or by hand on the party or sent by recorded delivery to the address of the party set out in this Agreement or at or to such other addresses as may be subsequently notified by one party to the other in accordance with this clause 17.
17.2. In the absence of evidence of earlier receipt any notice shall be deemed to be duly served:
17.2.1. if delivered personally when left at the address in accordance with clause 17.1;
17.2.2. if sent by recorded delivery 3 Working Days after posting.
18.1. Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party.
19.1. This Agreement is personal to the Buyer and neither this Agreement, nor any rights or obligations under it, may be assigned by the Buyer without the prior written consent of the Seller.
20.1. This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement.
21.1. If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
22.1. This Agreement shall be binding upon and enure to the benefit of the parties and their respective successors and permitted assigns, and references to a party in this Agreement shall include its successors and permitted assigns.
23.1. No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement.
24.1. The parties confirm their intent not to confer any rights on any third parties by virtue of this Agreement and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
25.1. This Agreement and all matters arising from it shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English Courts