FLEXFIT HEADWEAR (EMEI) LIMITED – TERMS AND CONDITIONS OF SALE AND SUPPLY

Attention is drawn to the terms and conditions set out below, in particular to clause 11 (limitation of Flexfit’s liability). They are binding upon all purchasers and govern all orders and contracts for the sale or supply of all products by Flexfit.

In these terms and conditions (“Conditions”) the following words and expressions shall have the following meanings:

“the Price” means the price of the Products, agreed between Flexfit and the Purchaser at the date of order.

“the Products” means the products sold or supplied by Flexfit to the Purchaser including any labelling and packaging.

“the Purchaser” means the entity named in the order which buys or has agreed to buy the Products from Flexfit.

“Flexfit” means Flexfit Headwear (EMEI) Limited, whose registered office is at 29-31 Castle Street, High Wycombe, Buckinghamshire, HP13 6RU

  1. ORDER AND ACCEPTANCE
    • These Conditions shall apply to and form part of all orders and other contracts for the sale or supply of the Products by Flexfit to the Purchaser and any terms and conditions in the Purchaser’s order or enquiries inconsistent with these Conditions shall be of no effect. All orders for the Products shall be deemed to be an offer by the Purchaser to purchase the Products in accordance with these Conditions.
    • The acceptance of orders for the Products shall be at the entire discretion of Flexfit. Acceptance of the Purchaser’s order shall become binding on Flexfit only when Flexfit has confirmed in writing that it has accepted the order.
  1. PRICES
    • Flexfit will supply the Products to the Purchaser at the Price.
  1. RETAIL
    • For the EU domestic market, Flexfit generally publishes suggested or recommended retail prices for its products (SRP’s or RRP’s). The Purchaser is, however, entirely free to resell the Products at whatever price it considers appropriate.
    • The Purchaser shall comply with Flexfit’s retail strategy as advised from time to time.
  1. PAYMENT
    • The time of payment shall be of the essence of any order or other contract to which these Conditions apply. Payment will be in advance of delivery except where credit terms have been agreed with the Purchaser in writing.
    • Unless otherwise stated in writing, the Price is exclusive of delivery charges, insurance charges, VAT and other applicable taxes, duties or levies all of which are payable by the Purchaser in addition to the Price.
    • In no event shall the Purchaser be entitled to make any deduction from any payment for an order due to Flexfit in respect of any set-off or counterclaim, unless both the validity and the amount thereof have been admitted in writing by a Director of Flexfit.
    • In addition to any other rights or remedies which Flexfit might have, if the Purchaser fails to make any payments due to Flexfit hereunder, Flexfit shall be entitled to charge (in addition to such sums) interest on the outstanding amount at 4% above the base rate quoted daily by the Royal Bank of Scotland calculated on a daily basis from the date payment becomes overdue until the date payment is received.
    • Payment shall be made by the Purchaser in GBP, USD or EUR as set out in the Purchase Order confirmation, by bank transfer to such bank account as Flexfit may from time to time notify in writing to the Purchaser.
    • Payment shall be construed as being received at the time that Flexfit’s bankers receive the cleared funds from the Purchaser’s bankers.
    • Flexfit shall be entitled to allocate payments received from the Purchaser against any invoice issued to the Purchaser that is due for payment.
  1. PASSING OF PROPERTY AND RISK
    • The Products shall be at the Purchaser’s risk from delivery.
    • Whether or not risk in the Products has passed, property in the Products shall not pass from Flexfit until Flexfit has received payment in full (in cash or cleared funds) of
      • all sums due to it in respect of the Products (including but not limited to the Price); and
      • all other sums which are or which become due to Flexfit from the Purchaser
    • Until such time as property in the Products has passed to the Purchaser, the Purchaser shall ensure that the Products are securely stored at no cost to Flexfit separately from all other goods in the Purchaser’s possession and marked in such a way that they are clearly identified as Flexfit’s property and easily removable by Flexfit. The Purchaser shall ensure that the Products are properly maintained in the condition in which they were delivered and shall make good any damage or deterioration.
    • The Purchaser may resell the Products in the ordinary course of its business before property in the Products has passed to it provided that any sale is a sale of Flexfit’s property on the Purchaser’s own behalf and is made by the Purchaser acting as principal. The Purchaser shall be deemed to have sold all products of the kind sold by Flexfit to the Purchaser in the order in which they were invoiced to the Purchaser.
    • Until such time as property in the Products passes from Flexfit:
      • the Purchaser shall not part with possession of the Products save as a result of a resale pursuant to clause 5.4; and
      • the Purchaser shall upon request deliver up to Flexfit such of the Products as have not been resold. If the Purchaser fails to do so Flexfit may, during business hours, without notice enter upon any premises owned, occupied or controlled by the Purchaser where the Products are situated or where Flexfit reasonably believes the Products are situated and repossess the Products and the Purchaser grants Flexfit an irrevocable licence for this purpose.
    • The Purchaser shall not pledge or in any way charge by way of security for any indebtedness any of the Products which are the property of Flexfit. Without prejudice to the other rights of Flexfit, if the Purchaser does so all sums owing by the Purchaser to Flexfit in relation to the Products shall forthwith become due and payable.
    • The Purchaser shall insure and keep insured, until property in the Products passes to the Purchaser, the Products to the full Price against “all risks” to the reasonable satisfaction of Flexfit from the time of delivery of the Products, and shall whenever requested by Flexfit produce a copy of the policy of insurance.
    • The Purchaser shall leave in position and not cover, deface or erase any notices or other marks (including serial numbers and notices that a patent, trade mark, design or copyright relating to the products is owned by Flexfit or a third party) which Flexfit may place on or affix to the Products.
  1. DELIVERY
    • Delivery shall take place on the first to occur of the following as agreed between the parties:
      • delivery of the Products to the Purchaser at Flexfit’s premises;
      • delivery of the Products to the Purchaser’s premises by Flexfit;
      • delivery of the Products to the agreed point of loading.
    • Any delivery dates requested by the Purchaser or estimated by Flexfit are approximate only and time of delivery shall not be of the essence, nor may the Purchaser make it so without Flexfit’s prior written agreement. Flexfit will use its reasonable endeavours to deliver in accordance with the delivery schedule agreed between the parties.
    • If the Purchaser refuses to agree a reasonable delivery date, does not respect an agreed delivery date or does not tender payment or provide Flexfit with such documentation as it shall reasonably require in order to effect delivery, Flexfit:-
      • may either effect delivery at the Purchaser’s expense by whatever means it thinks most appropriate or arrange storage at the Purchaser’s risk and expense pending delivery; and
      • may, upon giving the Purchaser 24 hours prior notice and the option to accept delivery within that timescale, re-sell or otherwise dispose of the Products or part of them without prejudice to any other rights Flexfit may have against the Purchaser for breach of contract or otherwise.
    • Flexfit shall be entitled to deliver the Products by instalments and in such case each instalment shall constitute a separate contract and any failure or defect in delivery of any one or more instalments shall not entitle the Purchaser to repudiate the contract as a whole nor to cancel any subsequent instalment.
    • The Purchaser must inspect the Products upon delivery and inform Flexfit in writing within 5 working days of any products which are delivered in a damaged or defective state or of any shortfall in the quantity of any delivery. Any shortfall in the quantity of Products delivered from that stated in any contract to which these Conditions apply shall not give rise to a claim for damages for breach of contract solely as a result of such shortfall, but the Purchaser shall only be obliged to pay at the contract rate for the quantity of Products delivered.
    • Non-delivery must be reported by the Purchaser by telephone within 48 hours of the agreed date of delivery and confirmed in writing within 5 days of the agreed date of delivery.
  1. RETURN OF PRODUCTS
    • The Purchaser shall have no right to require Flexfit to take back and to give credit for non-defective Products delivered to the Purchaser in accordance with clause 6.1.
    • Should the Purchaser prove to the satisfaction of Flexfit that Products supplied are not in accordance with the specifications of the order or are defective by way of faulty material or workmanship, Flexfit may at its discretion request the return of the Products in question for repair or replacement or issuance of a credit note to the value of the Products concerned.
    • Flexfit cannot be held responsible for lost returns (save where lost by Flexfit).
  1. SAMPLES
    • CUSTOM PROGRAM SAMPLE COSTS – UK/EU PRODUCTION. If the Purchaser selects our UK/EU Production route, the following shall apply:
      • A set up charge of EUR 30.00 (GBP £27.00) plus VAT at the current rate (where applicable) will be charged per design. The Purchaser will receive a CAD graphic of each proposed design for review and approval (the CAD graphic sample shall be sent to the email address provided by the Purchaser).
      • If, following receipt of the CAD graphic design, the Purchaser wishes to request a physical sample of a design, or multiple designs, each physical sample will be charged at an additional cost of EUR 30,00 (GBP £27.00) plus VAT at the current rate (where applicable);
      • If a bulk order of a sample design is placed, the Purchaser shall be entitled to receive a credit against the bulk order invoice for the cost of any CAD graphic samples and/or physical samples paid for by the Purchaser. This will show as a credit on the bulk order invoice.
      • If the Purchaser does not place a bulk order following receipt of a sample design (whether CAD graphic sample or physical sample), there will be no credit or refund of the sample costs paid.
      • Once an order is placed, it cannot be cancelled. Products may only be returned to Flexfit where products are faulty/non-conforming (see clause 7.1).
  • CUSTOM PROGRAM SAMPLE COSTS – NON-UK/NON-EU PRODUCTION. If the Purchaser selects our non-UK/non-EU Production route, the following shall apply:
    • A set up charge of US$ 400 plus VAT at the current rate (where applicable) will be charged per design. The Purchaser will receive a CAD graphic and a physical sample of each proposed design for review and approval (the CAD graphic sample shall be sent to the email address provided by the Purchaser and the physical sample shall be sent to the physical location nominated by the Purchaser).
    • If a bulk order of a sample design is placed, the Purchaser shall be entitled to receive a credit against the bulk order invoice for the cost of the samples paid for by the Purchaser. This will show as a credit on the bulk order invoice.
    • If the Purchaser does not place a bulk order, there is no refund following receipt of a sample design, there will be no credit or refund of the sample costs paid.
    • Once an order is placed, it cannot be cancelled. Products may only be returned to Flexfit where products are faulty/non-conforming (see clause 7.1).
  1. DEFAULT AND PURCHASER’S INSOLVENCY
    • In the event that:
      • there is any default or breach of any of the Purchaser’s obligations under these Conditions, including without limitation any failure to make any payments due to Flexfit hereunder; or
      • the Purchaser shall make or offer to make any arrangement or composition with creditors, or any petition or receiving order is presented or made against the Purchaser, or (if the Purchaser is an individual) any order or petition for the Purchaser’s bankruptcy shall be made or presented or (if the Purchaser is not an individual) any order, resolution or petition to wind it up shall be made, passed or presented, or a receiver, manager or administrative receiver of all or any of its assets shall be appointed, or an administrator shall be appointed, an application for an administrator’s appointment made or a notice for an administrator’s appointment filed, or the Purchaser becomes insolvent, or the Purchaser undergoes any similar or analogous process to the foregoing in any jurisdiction; or
      • there is a material change in the control or ownership of the Purchaser, then (without prejudice to any other remedies Flexfit might have) in any such case, the Purchaser’s right (under clause 5.4 or otherwise) to resell Goods in which title has not passed to it shall immediately terminate and outstanding unpaid invoices rendered by Flexfit in respect of the Products shall become immediately payable by the Purchaser and (except where Flexfit exercises its rights under clauses 9.1.4, 9.1.5 or 9.1.6) invoices in respect of Products ordered and delivered prior to termination but for which an invoice has not been submitted shall be payable immediately upon submission of the invoice and Flexfit shall be entitled to:-
        • refuse to make delivery of any further consignment of any Products agreed to be supplied, including cancelling any outstanding delivery or stopping any Products in transit; and/or
        • cancel or suspend any current or future order or other contract to which these Conditions apply (either in whole or part) by notice in writing to the Purchaser; and/or
        • sell or otherwise dispose of to a third party any Products which are the subject of any order by the Purchaser and which have not yet been delivered
      • In the event any contract to which these Conditions apply is terminated by Flexfit under clause 9.1 the Purchaser shall indemnify Flexfit against all losses arising out of such termination. Such losses shall be deemed to include loss of profits, the cost of work in progress, labour costs and the cost of any materials or components purchased by Flexfit for use in manufacturing the Products for the Purchaser which were not so used and which Flexfit will be unable to use in future in the production or manufacture of any other products.
      • Termination of any contract to which these Conditions apply shall be without prejudice to any rights accrued in favour of either party prior to the date of such termination.
  1. FORCE MAJEURE
    • If Flexfit is prevented from fulfilling any order or contract or otherwise fulfilling its obligation within a reasonable time by force majeure, it will notify the Purchaser of the delay. Flexfit shall be under no liability to the Purchaser and shall be entitled to extend the time or times for delivery or otherwise performing such contract for so long as such cause of prevention or delay shall continue.
    • For the purpose of these conditions “force majeure” shall be deemed to be any cause affecting the performance of these conditions arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of Flexfit.
  2. LIMITATION OF FLEXFIT’S LIABILITY
    • Flexfit’s liability (if any) whether in contract, tort (including, without limit, negligence) or otherwise in respect of any defect in the Products, or for any breach of these Conditions, or of any duty owed to the Purchaser in connection with them shall be limited to the amount of the Price.
    • Flexfit shall not be liable for:
      • any delays in delivery; or
      • any minor variations in colour, texture, shade and/or general appearance of the Products; or
      • any loss of profit or goodwill suffered or incurred by the Purchaser or any third parties; or
      • the cost of substitute goods
    • For the avoidance of doubt, nothing in these Conditions shall exclude or restrict Flexfit’s liability:
      • for any fraudulent misrepresentation made to the Purchaser on which the Purchaser relied in entering into any contract made under these Conditions; or
      • in relation to any statutory implied conditions as to title in the Products; or
      • to any person for death or personal injury to that person resulting from Flexfit’s negligence; or
      • under consumer protection legislation to a person who has suffered physical injury caused wholly or partly by a defect in the Products or to a dependent or relative of such a person.
  1. GENERAL
    • The Purchaser shall keep confidential at all times any and all information, data and other items (“Information”) received from Flexfit which are marked “Confidential” or which may by their nature reasonably be considered to be confidential. This obligation shall not however apply to Information which is in or, without breach of this obligation, comes into the public domain or which is already in the Purchaser’s possession without obligation of confidence.
    • The Purchaser may not assign or transfer or purport to assign or transfer any contract to which these Conditions apply or the benefit thereof to any person whatsoever. These Conditions shall not confer any benefit upon any person who is not a party to the contract between Flexfit and the Purchaser.
    • These Conditions shall constitute the entire agreement between Flexfit and the Purchaser and any modification to these Conditions will be binding only if it is evidenced in writing, signed by a Director of Flexfit and such evidence contains a specific reference to these Conditions being modified. The Purchaser confirms that in entering into its contract with Flexfit it has not relied upon any matter not set out in these Conditions and acknowledges that, except in relation to fraudulent misrepresentation, Flexfit shall not have any liability for pre-contract statements, representations or similar.
    • Each of the above provisions and the separable parts thereof shall be construed as independent and standing on its own. Should any part of these Conditions be become partially or totally invalid or for any reason unenforceable it shall be deemed deleted and none of the other provisions or parts thereof shall be invalidated or affected in any way and shall remain in full force and effect.
    • A failure by either Flexfit or the Purchaser to enforce any right conferred upon it by these Conditions shall not be deemed to be a waiver of such right or operate so as to bar the exercise or enforcement thereof at any subsequent time or times.
    • If one party needs to give a formal notice to the other, it shall do so in writing, sent by international courier (if to or from a non-UK address) or prepaid first class post (if to and from a UK address) to the recipients registered office address or, alternatively, to the recipient’s address set out on its most recent order and/or invoice. A notice given in this way shall be deemed to have been served on the second day after the date of posting.
    • Any contract to which these Conditions apply (and these Conditions themselves) shall be governed by English Law and subject to the exclusive jurisdiction of the English Courts.