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Cubbies Ltd – SUPPLY OF GOODS AGREEMENT

 

Supplier: Cubbies Ltd, Registered number  08719429

Company registered office: 414-416 Blackpool Road, Ashton-on-Ribble, Preston, Lancashire, PR2 2DX.

Postal Address/Main trading address: Enterprise Centre, Lytham Road, Blackpool, Lancashire, FY4 1EW.

Supplier's VAT number: GB176638077.

Dispatch Location: Redditch, Birmingham

 

CONDITIONS

1. INTERPRETATION

1.1 Definitions:

Authorised Distributor: A business duly authorised and licensed by Cubbies Ltd to distribute Blank Cubbies ® Goods to other businesses and to Authorised Retailers.

Authorised Retailer: A business duly authorised and licensed by Cubbies Ltd to sell embroidered Cubbies ® Goods to Consumers.

Blank Goods: those that had not been embroidered upon.

Business Day:  a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Commencement Date:  the date the Contract commences, as set out in the Contract Details.

Conditions:  these terms and conditions set out in clause 1 to clause 16 (inclusive).

Contract:  the contract between the Supplier and the Customer for the sale and purchase of the Goods.

Delivery Date:  the date specified for delivery in accordance with clause 5.

Delivery Location:  the address for delivery of the Goods, as set out in the Contract Details.

Force Majeure Event:  events, circumstances or causes beyond a party's reasonable control.

Goods:  the goods (or any part of them), as set out in the Contract Details.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Mandatory Conditions:  the Supplier's mandatory conditions for contracts with its Authorised Retailers set out in Schedule 2, as amended by notification to the Supplier from time to time.

Minimum Quantity:  the minimum quantity of Goods for the period set out in the Contract Details and/or clause 3.

Order: the Customer's order for the goods, as set out in the Customer's written acceptance of the Supplier's quotation.

Price:  the price for the goods, as set out in the Contract.

 

1.2 Interpretation:
(a) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

(b) any phrase introduced by the terms including, include, in particular, or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

(c) A reference to writing or written includes emails.

2. COMMENCEMENT AND TERM

This Contract shall commence on the Commencement Date and shall continue unless terminated earlier in accordance with its terms.

3. INTELLECTUAL PROPERTY RIGHTS

3.1 The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Goods are and shall remain the sole property of the Supplier.

3.2 The Supplier shall retain the property and copyright in all documents supplied to the Customer in connection with the Contract and it shall be a condition of such supply that the contents of such documents shall not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of the Supplier.

3.3 The Supplier's Intellectual Property Rights in and relating to the Goods shall remain the exclusive property of the Supplier, and the Customer shall not at any time make any unauthorised use of such Intellectual Property Rights, nor authorise or permit any of its agents or contractors or any other person to do so.

3.4 Only Authorised Retailers of the Supplier are authorised to advertise the Goods on the internet, social media, brick & mortar or internet sales outlets or platforms whilst exhibiting Cubbies ® trademark.

4. MINIMUM PURCHASE OBLIGATION

 

Following its authorisation by the Supplier as its Authorised Retailer, the Customer will be required to purchase the Minimum Quantity of Cubbies ® products, which will be as follows:

(a) Cubbies® blank toys as per the latest published Catalog based on a minimum order quantity of two Cubbies & three Blankies equal to the minimum  re-order value of £100 +vat, or

(b) Cubbies ® blank toys of the type and colour as agreed between the Supplier and the Customer.

5. ORDERS

5.1 The Customer shall place Orders as required and/or on a quarterly basis at least 60 (sixty) days before the start of that quarter.

5.2 Orders shall be given in writing via email, online ordering or verbally by calling your designated account manager. The Supplier may accept or decline Orders at its absolute discretion. The Supplier may at its discretion accept an amendment to an Order by the Customer.

5.3 The Supplier shall assign an order number to each Order it accepts and notify the order number to the Customer. Each party shall use the relevant order number in all subsequent correspondence relating to the Order.

5.4 After confirming an Order, the Supplier shall as soon as is practicable inform the Customer of the Supplier’s estimated delivery date for the Order.

5.5 The Customer is responsible for ensuring that Orders are complete and accurate. The Customer shall give the Supplier all necessary information relating to the Goods that the Supplier reasonably requires in order to fulfil each Order.

6. THE GOODS

6.1 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogs or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.

6.2 The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.

7. DELIVERY

7.1 The Supplier shall ensure that each delivery of Goods is accompanied by a delivery note which shows the order number, the type and quantity of Goods (including the code number of the Goods, where applicable), special delivery instructions (if any).

7.2 The Supplier shall endeavor to have Goods ready for collection at the Dispatch Location so orders can reach the customer on the relevant Delivery Date.

7.3 Delivery is completed once the goods ordered have reached the agreed shipment address.

7.4 Delivery Dates are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of any Goods that is caused by:

(a) A Force Majeure Event; or

(b) The Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

7.5 If the Supplier fails to have Goods ready for collection by the relevant Delivery Date, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the Price of the Goods. The Supplier shall have no liability for any failure to deliver Goods to the extent that such failure is caused by:

(a) A Force Majeure Event; or

(b) The Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

7.6 If the Supplier delivers up to and including 10% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro-rata adjustment shall be made to the Order invoice.

7.7 The Supplier may deliver Orders by instalments, which shall be invoiced and paid for separately. The Customer may not cancel an instalment because of any delay in delivery or defect in another instalment.

8. QUALITY AND FITNESS FOR PURPOSE

8.1 The Supplier’s warranty period is 30 days from the date of delivery.

8.2 However, the warranty period will end prior to the expiration of the 30 days if the Customer alters, embellishes, customises or embroiders the Goods in any way.

8.3 During the warranty period, 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); and

(d) Be fit for any purpose held out by the Supplier.

8.4 Subject to clause 8.5, if:

(a) the Customer gives notice in writing to the Supplier during the warranty period promptly after the discovery that some or all of the Goods do not comply with the warranties set out in clause 8.1;

(b) The Supplier is given a reasonable opportunity of examining such Goods, and

(c) The Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's Trading Address at the Customer's cost,

The Supplier, at its discretion, will replace Goods of 5pc’s or more that are found to be defective, or refund the price of such defective Goods in full.

8.5 The Goods cannot be returned, replaced or credited to the Customer and the Supplier shall not be liable for Goods' failure to comply with the warranties set out in clause 8.1 if

(a) The Customer has embellished, embroidered or changed the Goods in any way.

(b) The Customer makes any further use of Goods of any part thereof after giving notice of defects in accordance with clause 8.4;

(c) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

(d) The Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

8.6 The Supplier's only liability to the Customer if the Goods fail to comply with the warranties set out in clause 8.1 is as set out in this clause 8. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

8.7 The terms of the Contract shall apply to any repaired or replacement Goods supplied by the Supplier.

9. TITLE AND RISK

9.1 Risk in Goods shall pass to the Customer on completion of loading the Goods at the Delivery/Dispatch Location.

9.2 Title to Goods shall only pass to the Customer once the Supplier receives payment in full in cleared funds for them.

9.3 Until title to the Goods has passed to the Customer, the Customer shall:

(a) Maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(b) Notify the Supplier immediately if it becomes subject to any of the events listed in clause 15.1(b); and

(c) Give the Supplier such information relating to the Goods as the Supplier may require from time to time.

9.4 The Supplier may recover the Goods from the Customer if the Customer had collected the goods but failed to pay for them as agreed with the Supplier. The Customer irrevocably licenses the Supplier, its officers, employees and agents, to enter any premises of the Customer (including with vehicles) to recover any such Goods.

10. PRODUCT RECALL

10.1 If the Customer is the subject of a request, court order or another directive of a governmental or regulatory authority to withdraw any Goods from the market (Recall Notice) it shall immediately notify the Supplier in writing enclosing a copy of the Recall Notice.

10.2 Unless required by law, the Customer may not undertake any recall or withdrawal without the written permission of the Supplier and only then in strict compliance with the Supplier's instructions as to the process of implementing the withdrawal.

11. PRICE AND PAYMENT

11.1 The Customer shall pay for Goods in accordance with this clause 11.

11.2 The Price excludes:

(a) The costs of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer in addition to the Price; and

(b) Amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to the receipt of a valid VAT invoice.

11.3 The Supplier may invoice the Customer for the price of Goods plus VAT at the prevailing rate (if applicable) on or at any time after it confirms the relevant Order to the Customer The Supplier shall ensure that the invoice includes the date of the Order, the invoice number, the Customer's order number, the Supplier's VAT registration number, and any supporting documentation that the Customer may reasonably require.

11.4 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier's remedies under clause 15:

(a) The Customer shall pay interest on the overdue amount at the rate of 8% per annum above Royal Bank of Scotland 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, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

(b) The Supplier may suspend all further deliveries of Goods until payment has been made in full.

11.5 The Customer shall pay all amounts due under the contract in full without set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any of its other rights or remedies, set off any amount owing to it against any amount payable by the Supplier to the Customer.

12. CONFIDENTIALITY 

12.1 Each party undertakes that it shall not at any time during the term of this contract and for a period of two years after termination disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of its Group of Companies, including but not limited to information relating to a party's operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers (Confidential Information), except if permitted to do so by the Supplier in writing.

12.2 Each party may disclose the other party's Confidential Information:

(a) to its employees, officers, agents, consultants or subcontractors (Representatives) who need to know such information for the purposes of carrying out the party's obligations under this agreement, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 16 as though they were a party to this agreement. The disclosing party shall be responsible for its Representatives' compliance with the confidentiality obligations set out in this clause; and

(b) As may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

12.3 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this agreement are granted to the other party or to be implied from this agreement.

13. LIMITATION OF LIABILITY

13.1 Nothing in this Contract shall limit or exclude the Supplier's liability for:

(a) Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

(b) Fraud or fraudulent misrepresentation;

(c) Breach of the terms implied by section 12 of the Sale of Goods Act 1979; or

(d) Defective products under the Consumer Protection Act 1987; or

(e) Any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

13.2 Subject to clause 13.1:

(a) The Supplier shall not be liable to the Customer, 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 Contract; and

(b) the Supplier's total liability to the Customer for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the sums paid by the Customer for Goods under this Contract.

14. COMPLIANCE WITH RELEVANT LAWS AND POLICIES

14.1 In performing its obligations under the Contract, the Parties shall:

(a) Comply with all applicable laws, statutes, regulations and codes from time to time in force; and

(b) Comply with the Mandatory Conditions.

14.2 The Customer may immediately terminate the Contract for any breach by the Supplier of the clause 15.1(a);

14.3 The Supplier may immediately terminate the Contract for any breach of this clause 14 by the Customer.

15. TERMINATION

15.1 Without limiting its other rights or remedies, either party may terminate this Contract with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;

(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(c) The other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d) The other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's Supplier's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

15.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due to under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.

15.3 Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination.

15.4 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

16. GENERAL

16.1 Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 3 months, the party not affected may terminate this Contract by giving 30 days' written notice to the affected party.

16.2 Assignment and other dealings.

(a) The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.

(b) The Supplier may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under this agreement.

16.3 Confidentiality.

(a) Each party undertakes that it shall not at any time during this agreement, and for a period of two years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 16.3(b). For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.

(b) Each party may disclose the other party's confidential information:

(i) To its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 16.3; and

(ii) As may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c) No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

16.4 Entire agreement.

(a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b) 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 this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

16.5 Variation.  No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16.6 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.  A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:

(a) Waive that or any other right or remedy, nor

(b) Prevent or restrict the further exercise of that or any other right or remedy.

16.7 Severance. If any provision or part-provision of this Contract 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 modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

16.8 Notices.

(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.

(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 16.8(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.

(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

16.9 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.

16.10 Governing law. This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with the law of England and Wales.

16.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).

Schedule 1 [Price of the Goods]

 

Schedule 2 Mandatory Conditions/Criteria for appointment of Authorised Retailers

 

Conditions for the Appointment of Authorised Retailers of Cubbies Ltd for the sale of Cubbies® toys to Consumers.

 

1. a) Cubbies Ltd is a supplier of luxury toys and wishes to limit the resale of its products via approved dealers.

 

1. b) Cubbies Ltd is concerned to ensure that its Goods are resold to consumers only by dealers with specific standards of presentation of finished (embroidered) products, expertise in the field, suitably trained staff, and in premises (or on-line/social media platforms deemed by the Supplier as appropriate for the products in question).

 

1. c) Therefore, prior to authorisation by the Supplier, the following criteria/conditions will be applied to any potential Retailers of Cubbies® Goods:

 

d). The Retailer will agree to follow the Supplier’s Anti-bribery and Anti-corruption Policy and Data Protection and Privacy Policy. Copies of the policies will be supplied to the Retailer at the earliest opportunity.

e). The Retailer would ensure it has a dedicated website or a dedicated page on social media sites or internet platforms for Cubbies® Goods.

f). Only the Supplier has the authority to grant Retailers permission to sell or display goods on 3rd Party internet platforms. All Retailers must contact the Supplier and gain authorisation before listing any goods for sale on sites to include but not exclusively eBay, Amazon, Etsy, Instagram & Facebook. Failure to do so allows the Supplier to request removal of products and closure of account without notice.

g). The Retailer will agree that it will not sell any inferior quality products from its dedicated website or page. Which products are inferior to Cubbies ® Goods is at the Supplier’s discretion. However, it is expected that the Supplier’s discretion will be exercised reasonably.

h). The Supplier will inform the Retailer who is the Authorised Distributors in their territory. The Retailer will agree that it will not at any time purchase Cubbies ® Goods from any non-authorised by the Supplier Distributors or re-sell blank Goods to any party.

I). The Retailer will adhere to marketing guidance offered by the Supplier regarding the placement of the Goods in the market.

j). The Retailer agrees to only use the current branding and brand names to promote, sell or describe Cubbies® in all markets.

k). The Retailer will self-certify all goods sent on to the consumer (end user) for all Cubbies products are safe and have not been altered in the way it was manufactured and the embroidery thread used for customisation is CE approved.

l). The Retailer agrees not to publish, or allow publishing, without a written approval by the Supplier any marketing material or documents, in any format, that may include representations or pictures of Cubbies ® Goods protected by its Intellectual Property Rights.