1. INTERPRETATION

1.1 In these terms and conditions, unless the context requires otherwise:
“Buyer” means the company, firm, body or person purchasing the Goods;

“Confidential Information” means any confidential information and technical know-how relating to the Goods, the business of each party, these terms and conditions or the terms of any Contract, but excluding any information:

(i) which is publicly known other than by breach of these terms and conditions; or

(ii) which, when it is disclosed to the other party, the other party can show is already known to that party; or

(iii) which after being disclosed to the other party, is disclosed to that party again by a third party at liberty to disclose it to that party;

“Contract” means a contract for the sale and purchase of the Goods between the Buyer and the Supplier;

“Goods” means the subject matter of the Contract including (but not limited to) schoolwear, clothing, accessories, sportswear or other related parts and accessories and whether one or a number of items whether or not identical or similar which may be supplied by the Supplier to the Buyer;

“Order” means a purchase order in respect of the Goods issued by the Buyer to the Supplier, together with all documents referred to in it;

“Specification” means the Akoa specification for the applicable Goods;

“Supplier” means Trutex Ltd (company number 7132787) whose registered office is at Taylor Street, Clitheroe, Lancashire BB7 1NL [and any subsidiary of the Supplier through which the Goods are sold]; and

“Supplier’s Price List” means the Supplier’s then published trade price list at the date of despatch of the Goods.

1.2 In these terms and conditions, unless the context otherwise requires:

1.2.1 the clause headings are for convenience of reference only and shall not affect the construction or interpretation of these terms and conditions;

1.2.2 the word “including” shall be understood to mean “including without limitation” and the word “includes” shall be understood to mean “includes without limitation”;

1.2.3 reference to a statute or a statutory provision includes:

(i) any subordinate legislation made under it;

(ii) any repealed statute or statutory provision which it re-enacts (with or without modification); and

(iii) any statute or statutory provision which modifies, consolidates, re-enacts or supersedes it;

1.3 In the event of any conflict between any part of these terms and conditions, the documents constituting the Contract shall have priority in the following order:

1.3.1 these terms and conditions;

1.3.2 the specification; and

1.3.3 the Order.

2. QUOTATIONS, ORDERS AND SPECIFICATIONS

2.1 The Supplier’s quotations are not binding on the Supplier and a Contract will only come into being between the Supplier and the Buyer when the Supplier issues a written acknowledgment of the Order or where the Supplier delivers the Goods to the Buyer (which ever is earlier)] and the following terms and conditions shall be deemed to be incorporated in the Contract.  For the avoidance of doubt as soon as the Supplier supplies a written acknowledgment or delivers the Goods (whichever is earlier) the Contract is formed and the Buyer cannot cancel such contract.

2.2 The Buyer shall be responsible for ensuring that all details (including the quantity, description and specification of the Goods) and terms of any Order are full and accurate. The Supplier reserves the right to reject any Order for whatever reason.

2.3 In circumstances where the Buyer has entered into a Contract for the purchase of Goods which are to contain a school logo, name, or other identifying feature, and/or are otherwise specific to a particular school, the Supplier may, upon serving note less than 1 months’ notice to the Buyer, terminate the Contract in circumstances where the Supplier has received a request from a school should the school have decided to delist the Buyer as an approved supplier to it for whatever reason. The Buyer agrees and understands that the Supplier shall not incur any liability to it for any losses (whether direct, indirect or consequential) as a result of the termination of a Contract under this clause 2.3.

2.4 Where Goods are to be supplied from stock, such supply is subject to availability of stocks at the date of delivery.

2.5 Any samples, sales literature or brochures are for information only and do not form part of the Contract.

3. PRICES

3.1 The Buyer agrees to purchase the Goods from the Supplier and the Supplier agrees to sell the Goods to the Buyer at the price described in clause 3.2.

3.2 The price of the Goods shall be the same as the quoted price as agreed between the Buyer and the Supplier and which may be confirmed in writing to the Buyer or, where the price has not been quoted, the price listed in the Supplier’s Price List.

3.3 Any quotation submitted by the Supplier shall remain valid for a period of 30 days from the date of the quotation, unless in the quotation some other period is specified or accepted or the quotation is withdrawn by the Supplier.

3.4 Unless otherwise stated, the price for the Goods is in sterling and are exclusive of value added tax and any other tax or duty. The Supplier shall invoice the Buyer for all appropriate taxes and expenses for which the Supplier is liable to collect. The Buyer shall be liable to pay any penalties or interest on such taxes which are payable by the Supplier as a result of the Buyer’s delay or non-payment of such taxes.

4. TERMS OF PAYMENT

4.1  (a)  All invoices dated between 5th and 20th of Month 1 will be due for payment on the first day of Month 3 e.g. if an invoice is dated between 5th and 20th March it must be paid by 1st May.

(b)  All invoices dated between 21st of Month 1 and 4th of Month 2 will be due for payment    on the 15th day of Month 3 e.g. if an invoice is dated between 21st March and 4th April it must be paid by 15th May.

4.2 Time of payment of any sums due to the Supplier shall be of the essence..

4.3 All payments will be made without deduction or set-off. When deliveries are spread over a period, each consignment will be invoiced as despatched and each invoice will be treated as a separate account and will be payable accordingly.

4.4 Without prejudice to any other right the Supplier may have, where the Buyer fails to pay any invoice in accordance with the foregoing terms or other terms specified in the Contract or where the Supplier is concerned about the Buyer’s financial position, the Supplier shall be entitled to suspend further deliveries on the same Order and on any other Order from the Buyer until payment or satisfactory security for payment has been provided by the Buyer.

4.5 Without prejudice to any other right the Supplier may have, where the Buyer has an overdue account, the Supplier reserves

the right to:

4.5.1 [charge interest on such overdue accounts, such interest to be calculated on a day-to-day basis on the amount outstanding at the rate of 4% above base rate from time to time of HSBC Bank PLC from the date when payment becomes due to the date of actual payment; and/or

4.5.2 issue a notice to the Buyer following which all sums due under the Contract or any other contract between the Buyer and the Supplier shall immediately become due and payable.

5. DELIVERY

5.1Unless otherwise agreed in writing by the Supplier, delivery of the Goods shall be by courier and shall take place at the Buyer’s place of business.

5.2 Delivery of the Goods shall occur upon receipt of a signature received at the time of and place for delivery.  For the avoidance of doubt, it shall be the Buyer’s responsibility to ensure that any person who signs at the point of delivery is an authorised signatory of the Buyer.

5.3 Risk in the Goods shall pass to the Buyer on delivery.

5.4 The dates for delivery of the Goods are approximate only and, unless otherwise expressly agreed, time is not of the essence for delivery of the Goods. No delay (unless substantial) shall entitle the Buyer to reject any delivery of any part of the Order or any other Order from the Buyer or to repudiate the Contract or the Order.

5.5 The Supplier will not be liable in any circumstances for the consequences of any delay in delivery or performance or failure to deliver or perform the Contract if the duration of the delay is not substantial or if the delay or failure is due to late delivery or performance or non-delivery or non-performance by carriers, suppliers or subcontractors or any other cause whatsoever beyond the Supplier’s control or of an unexpected or exceptional nature.

5.6 Goods may be delivered in advance of any quoted delivery date upon the Supplier giving reasonable notice to the Customer.

6. ACCEPTANCE

6.1 The Buyer shall be deemed to have accepted the Goods 7 days after the Goods are delivered (as defined in clause 5.1)by the Supplier or earlier if the Goods are sold onto a third party.

6.2 The Supplier shall not be liable for any losses or damages whatsoever for any incomplete deliveries if the Buyer has not notified the Supplier within 7 days of the Goods being delivered that they have not received all the Goods as detailed in the Order.

7. TITLE TO GOODS

7.1 Unless otherwise stated, Goods delivered by the Supplier shall be at the Buyer’s risk from the point of delivery as set out in clauses 5.1 and 5.2.

7.2 Notwithstanding delivery of and the passage of risk in the Goods to the Buyer, property in the Goods shall not pass to the Buyer until payment in full has been received by the Supplier in respect of:

7.2.1 the Goods;

7.2.2 any other account (whether or not accrued, due and payable); and

7.2.3 any interest payable to the Supplier on any account whatsoever.

7.3 Until property in the Goods passes to the Buyer in accordance with clause 7.2 above:

7.3.1 the Buyer shall hold all such Goods as bailee for the Supplier and shall store them separately from any similar goods of the Buyer’s or any other person in such a way as they remain identifiable and labelled as the Supplier’s property and the Buyer shall oblige its agents, employees or other third parties to ensure that its obligations under this clause are complied with at all times; and

7.3.2 the Supplier may at any time and without notice enter any premises where the Goods are stored in order to inspect them or repossess them and the Buyer hereby grants the Supplier, its agents and employees, an irrevocable licence to enter such premises for this purpose.

7.4 The Buyer is authorised to re-sell the Goods to its customers on the following conditions:

7.4.1 any such re-sales shall be effected on retention of title terms in the Buyer’s favour (and the Buyer shall provide such information as the Supplier may reasonably require from time to time to ensure the Buyer is complying with this obligation);

7.4.2 any such re-sales shall be effected by the Buyer as agent for the Supplier provided that the Buyer has no authority to create privity of contract between the Supplier and any of the Buyer’s customers to whom the Goods are re-sold;

7.4.3 the Buyer shall pay to the Supplier from the proceeds of re-sale immediately upon receipt the price due and outstanding to the Supplier in respect of the Goods subject to the re-sale to the Buyer’s customer, and pending such payment hold that sum on trust for the benefit of the Supplier absolutely and in a separate and identifiable bank account held with a UK clearing bank to whom notification of the Supplier’s interest shall be given; and

7.4.4 if the Buyer chooses to deal with any book debts or claims created on re-sale of the Supplier’s Goods, by way of a sale, assignment, charge or creation of any interest in favour of any third party, prior to such dealing the Buyer shall provide a copy of these terms to such third party.

7.5 The Buyer’s right to possession and authority to re-sell the Goods (in accordance with clause 7.4 above) shall automatically terminate if the Buyer, being an individual, is declared bankrupt or makes any proposal to its creditors for any composition or voluntary arrangement or, being a company, an administrator, administrative receiver or other receiver is appointed in respect of its business and/or assets, or liquidator is appointed (whether by creditors are compulsory winding

up order) or enters into any composition or arrangement with its creditors, or if any distress or execution is levied against any of its assets.

7.6 Exercise of these rights under this clause 7 shall be without prejudice to other rights or remedies that the Supplier may have whether under these terms and conditions or any contract with the Buyer or otherwise, including the right to compensation for any profits lost as a result of the Buyer’s breach of contract.

8. WARRANTIES AND LIABILITIES

8.1 Save as expressly set out in these terms and conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

8.2 The Supplier warrants that (subject to the other provisions of these conditions) upon delivery and for 6 months thereafter, the Goods will meet the relevant Specification.

8.3 In addition to the terms and conditions set out in clause 8.6, the Supplier shall not be liable for a breach of any of the warranties in clause 8.2 unless:

8.3.1 the Buyer gives written notice of the defect to the Supplier within 7 days of the time when the Buyer discovers or ought to have discovered the defect, together with details of the defect including:

(a) the invoice number of the defective Goods (where relevant);

(b) a description clearly identifying the Goods in question;

(c) the quantity of defective Goods; and

(d) a full description of the defect; and

8.3.2 the Supplier is given a reasonable opportunity after receiving the notice to examine such Goods and the Buyer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Buyer’s cost for the examination to take place there.

8.4 If Goods are defective, incorrect or damaged on delivery, the Buyer shall (whether or not delivery is refused by the Buyer) notify the Supplier in writing within 7 days of the date of said delivery giving full details of such claim as set out at clause 8.3.1.

8.5 The Supplier will not be liable for any reasonable excesses and/or deficiencies in the quantity of Goods delivered up to a variation of 5% between the Goods ordered and the Goods delivered. Where such excess or deficiency is less than 5%, the Buyer is not entitled to reject such Goods on the grounds that they are not precisely as specified in the Order. Accordingly, the Buyer shall pay for such Goods on a pro rata basis in accordance with these terms and conditions.

8.6 The Supplier shall not be liable for a breach of any of the warranties in condition 8.2 or for any claims in respect of incorrect Goods or incorrect quantities of Goods delivered if:

8.6.1 the Buyer makes any further use of the Goods after giving notice to the Supplier in accordance with clauses 8.4 and/or 8.3.1;

8.6.2 any defect arises due to the improper use of the Buyer or any third party or because the Buyer or third party failed to follow the Supplier’s or the manufacturer’s oral or written instructions as to the storage, usage or maintenance of the Goods;

8.6.3 any defect results from or is attributable to fair wear and tear of the Goods, the negligence of the Buyer or any third party or from materials, or instructions supplied by the Buyer or any third party;

8.6.4 the incorrect Goods or incorrect quantities of Goods results from or is attributable to the inaccuracy of the terms of any Order submitted by the Buyer or failure by the Buyer to give the Supplier sufficient or accurate information to enable the Supplier to perform the Contract in accordance with its terms; or

8.6.5 the Buyer alters or repairs such Goods without the written consent of the Supplier.

8.7 Nothing in these terms and conditions shall apply to exclude or limit any liability to the Buyer in respect of:

8.7.1 fraud, or fraudulent misrepresentations; or

8.7.2 death or personal injury of the Buyer caused by the Supplier’s negligence; or

8.7.3 the terms as to title or quiet possession implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

8.7.4 liability for defective products under the Consumer Protection Act 1987; or

8.8 In respect of any cause of action (including an action for negligence) arising out of or in connection with the Goods, the Supplier’s entire liability shall be limited, to the extent that the cause of action related to the Goods, (at the Supplier’s option) to:

8.8.1 repairing or re-supplying the Goods; or

8.8.2 refunding or issuing a credit note for the amount paid by the Buyer in respect of the Goods purchased, and the Buyer shall (at the Buyer’s expense), if the Supplier so requests, return the Goods or the part of such Goods which is defective or incorrect to the Supplier.

8.9 If the Supplier complies with clause 8.8 it shall have no further liability for a breach of any of the warranties in clause 8.2 in respect of such Goods or for delivery of incorrect Goods.

8.10 Any Goods that have been replaced will belong to the Supplier and any replacement Goods will be subject to the warranties in clause 8.2 and these terms and conditions.

8.11 Subject to clause 8.7 the Supplier will not be liable to the Buyer whether in contract, tort (including negligence) or howsoever caused for any: (a) loss of profit; (b) loss of anticipated profit; or (c) any indirect, special or consequential loss.

8.12 Subject to clause 8.7, 8.8 and 8.11 the Supplier’s liability whether for breach of contract, tort (including negligence) or howsoever caused under or in connection with the Contract shall be limited to the value of the relevant Order.

9. DAMAGE OR LOSS IN TRANSIT

9.1 Claims for damage or loss in transit by the Buyer must be made against the carrier if delivered by a carrier and any conditions imposed by the carrier in relation to claims for damage or loss in transit should be complied with.

9.2 The Buyer shall notify the Supplier in writing within 7 days of the due delivery date if any Goods have not been delivered.  The Supplier will not accept liability for any Goods which have not been delivered if the Buyer does not notify the Supplier of the lack of delivery within 7 days of the due delivery date.

10. RETURNS

10.1 Notwithstanding clause 8.8 and the provisions of clause 8 in respect of defective Goods, the Buyer may return Goods delivered to and accepted by the it subject to:

10.1.1 prior agreement of the Supplier acting in its entire discretion and on issue of a valid Goods Return number;

10.1.2 payment of a handling charge as specified by the Supplier from time to time; and

10.1.3 the Goods being in the same condition as they were on delivery.
10.2 Goods will not be accepted where:
10.2.1 Goods are damaged by incorrect care/ handling
10.2.2 Goods have suffered normal wear and tear, accident or mishandling
10.2.3 Goods are shop soiled or have discoloured due to lengthy periods in store
10.2.4 Goods are discontinued styles

10.2.5 The customer has changed their mind or placed an incorrect order,

11. TERMINATION

11.1 If the Buyer subsequently cancels, reduces in scope or frustrates (by an act or omission on part of the Buyer or any third party relied upon by the Buyer) the Contract, the full price for the Contract shall remain payable unless otherwise agreed in writing by the Supplier in advance.

11.2 The Supplier shall be entitled to terminate the Contract immediately, stop all Goods in transit and suspend further deliveries by written notice to the Buyer if:

11.2.1 the Buyer commits a breach of these terms and conditions which is not capable of remedy or in the case of a breach which is capable of remedy, fails to remedy the same within 7 days of receipt of a written notice specifying the breach and requiring it to be remedied; or

11.2.2 the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administrative order or goes into liquidation, or an encumbrancer takes possession or a receiver is appointed over any of the property or assets of the Buyer, or the Buyer ceases or threatens to cease business, or an equivalent or analogous event occurs in any other jurisdiction.

11.3 Any termination of the Contract shall not prejudice any rights or remedies which may have accrued to either party up to the date of termination.

12. ASSIGNMENT AND SUBCONTRACTING

12.1 None of the rights or obligations of the Buyer under the Contract or these terms and conditions may be assigned or transferred in whole or in part without the prior written consent of the Supplier.

12.2 The Supplier shall be entitled to subcontract any work relating to the Contract without obtaining the consent of, or giving notice to, the Buyer.

13. NOTICES

13.1 Any notice or other communication to be given under these terms and conditions must be in writing and may be delivered by hand sent by prepaid first class letter post or facsimile transmission.

13.2 Any notice or document shall be deemed served: if delivered, at the time of delivery; if posted, 48 hours after posting; and if sent by facsimile transmission, at the time of transmission.

14. FORCE MAJEURE

The Supplier shall not be liable for any delay in, or failure of, performance of its obligations under these terms and conditions or the Contract arising from any cause beyond the Supplier’s reasonable control including (but not limited to) any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion, failure in information technology or telecommunications services, failure of a third party failure of a supplier to supply relevant materials and industrial action.

15. CONFIDENTIALITY

15.1 Subject to clause 15.3, and save as necessary in order for the Supplier to supply the Goods to the Buyer, neither party may use any of the other party’s Confidential Information.

15.2 Subject to clause 15.3, neither party may disclose to any other person any of the other party’s Confidential Information.

15.3 Either party may disclose the Confidential Information of the other:

15.3.1 when required to do so by law or any regulatory authority, provided that party required to disclose the Confidential Information, where practicable and legitimate to do so:

15.3.1.1 promptly notifies the owner of any such requirement; and

15.3.1.2 co-operates with the owner regarding the manner, scope or timing of such

disclosure or any action that the owner may take to challenge the validity of such

requirement; and

15.3.2 to its (or any of its associated company’s) personnel, sub-contractors’ personnel or any person whose duties reasonably require such disclosure, on condition that the party making such disclosure ensures that each such person to whom such disclosure is made:

15.3.2.1 is informed of the obligations of confidentiality under these terms and conditions;

and

15.3.2.2 complies with those obligations as if they were bound by them.

15.4 The obligation of confidentiality contained within this clause 15 shall survive termination of the Contract and these terms and conditions howsoever caused.

16. DATA PROTECTION

The Supplier may use and the Buyer agrees that it may use and disclose personal information about the Buyer to third parties for the purposes of delivering the Goods to the Buyer and processing invoices and statements. In respect of any personal data of one party held by the other, both parties agree to comply with the provisions of the Data Protection Act 1998 in respect of such data.

17. INTELLECTUAL PROPERTY

17.1 All trade marks and trade names (including without limitation Akoa), logos, copyright in any images and brochures and all other intellectual property rights which belong to the Supplier (“Akoa IP“) shall remain in the ownership of the Supplier.  Nothing in these terms and conditions transfer any rights or grants any licences for the Buyer to use any such Akoa IP whether for marketing purposes or any other use.  If the Buyer wishes to use any of the Akoa IP it must get the Supplier’s permission in writing and sign the relevant licence agreement.

18. GENERAL PROVISIONS

18.1 Nothing in these terms and conditions shall render any member of staff of the Buyer an employee, agent or partner of the Supplier and nothing in these terms and conditions shall made the other party the agent or partner of the other, or give either party the power to bind the other.

18.2 A person who is not party to the Contract shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.

18.3 The invalidity, illegality or unenforceability of any provision of these terms and conditions shall not affect the other terms and conditions which shall remain unaffected.

18.4 These terms and conditions represent the entire understanding relating to the Contract, unless otherwise expressly agreed between the parties, and supersede all other statements, representations or warranties (whether written, made by email or oral) made by the Supplier, its employees and agents. Nothing in these terms and conditions shall affect the liability of either party in respect of any misrepresentation, warranty or condition that it makes fraudulently. Any rights not expressly granted in these term and conditions are reserved by the Supplier.

18.5 No waiver by the Supplier of any breach of the Contract and/or these terms and conditions by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

18.6 The Contract (and any proceedings whereby one party might be entitled to join the other as a third party) shall be governed by and construed in all respects in accordance with English law and the parties submit to the exclusive jurisdiction of the English Courts.