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Terms & conditions

Terms and conditions for the supply of goods and services.

1. Definitions and interpretation

1.1 In these Conditions the following terms have the following meanings:
Company: Plushie Ltd;
Company Material: any documents, plans, drawings, designs, artwork, illustrations, plans, discs, computer print outs, prototypes, models, tools, moulds, dies, patterns, and all data, materials or other information provided by the Company to the Customer relating to the Goods and Services, or otherwise used by the Company in supplying the Goods and Services to the Customer and including the Specification and the Final Design;
Conditions: the terms and conditions set out in this document;
Confidential Information: any information disclosed by one (the disclosing party) to another (the receiving party) if the disclosing party has notified the receiving party that the information is confidential or the information could reasonably be supposed to be confidential;
Contract: any contract between the Company and the Customer for the supply of Goods and Services to the Customer, incorporating these Conditions;
Customer: the person, firm or company who wishes to purchase Goods and Services from the Company subject to these Conditions;
Data Protection Law: means the General Data Protection Regulation 2016/679 (GDPR) and any national implementing laws, regulations and secondary legislation in the United Kingdom relating to the processing of personal data and the privacy of electronic communications, as amended, replaced or updated from time to time and any successor legislation to the GDPR or the Data Protection Act 1998;
Final Design: the final design for the Goods to be produced by the Company for the Customer in accordance with the Specification;
Goods: the goods designed by the Company for the Customer which the Company is to supply to the Customer under the Contract;
Input Material: any specification or other material, information or instructions to be furnished by the Customer to the Company for use by the Company in supplying the Goods and Services to the Customer in accordance with the Specification and including any words, images or designs to be applied to the Goods at the Customer’s request;
Intellectual Property Rights: any design rights, utility models, patents, inventions, logos, business names, trademarks, domain names, copyright, moral rights, rights in databases, source codes, reports, drawings, specifications, know how, trade secrets, rights in software, rights in the nature of unfair competition and the right to sue for passing off and any other equivalent or similar rights to any of the foregoing in any jurisdiction, whether registered or unregistered;
Lead Time: the time within which the Company estimates that the Goods will be delivered;
Order: the Customer’s verbal or written order for the supply of the Goods and Services;
Price: the price to be paid by the Customer under the Contract;
Quotation: the Company’s quotation for the supply of the Goods and Services;
Services: the design services which the Company is to supply to the Customer under the Contract;
Specification: the specification for the Goods and Services agreed in the Contract to be provided by the Company to the Customer.
1.2 A reference to a clause is to a clause of these Conditions.
1.3 Clause headings shall not affect the interpretation of these Conditions.
1.4 Any reference to “parties” means the parties to the Contract and “party” shall be construed accordingly.
1.5 Words in the singular include the plural and in the plural include the singular.
1.6 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.7 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 or following those terms.

2. Basis of contract

2.1 These Conditions shall apply to any Contract for the supply of Goods and/or Services entered into by the Company and the Customer to the exclusion of all other terms and conditions, including any terms and conditions appearing on or referred to in any Order.
2.2 No variation to these Conditions shall be binding unless it is made in writing specifying both which clause is to be varied and the full details of such variation and is signed on behalf of each of the Customer and the Company.
2.3 The Company’s employees or agents are not authorised to make any representations concerning the Goods or Services unless confirmed by the Company in writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed. The Customer irrevocably and unconditionally waives any right it may have to claim damages for and/or to rescind the Contract as a result of any misrepresentation whether or not contained in the Contract unless such misrepresentation was made fraudulently.
2.4 Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the use, application, care or storage of the Goods and/or Services which is not confirmed in writing by the Company is followed or acted upon entirely at the Customer’s own risk and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, Quotation, price list, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.

3. Sale and purchase

3.1 The Company will supply Goods and Services to the Customer subject only to these Conditions. Any Quotation is valid for a period of 60 days only from its date, provided that the Company has not previously withdrawn it.
3.2 Each Order shall be deemed to be an offer by the Customer to purchase the Goods and Services subject to these Conditions, but no Contract shall arise between the parties unless and until the Company acknowledges the Order in writing.
3.3 Once a Contract has arisen pursuant to the provisions of clause 3.2, no Order may be cancelled by the Customer without the Company’s written consent and subject to the Customer’s payment of all costs, charges and expenses incurred by the Company, including any such costs, charges and expenses incurred in designing the Goods.
3.4 The Customer shall ensure that the terms of its Order and any Input Material are complete and accurate so as to enable the Company to meet the Specification.
3.5 The Company will design the Goods for the Customer following receipt by the Company of all required Input Material. The Company, acting reasonably, shall be solely responsible for determining how may rounds of changes may be made to the design before the design will be considered to constitute the Final Design.
3.6 The Company shall be under no obligation to produce the Goods under the Contract until the Customer shall have given the Company its written confirmation of approval of the Final Design.
3.7 Once the Customer has approved the Final Design in accordance with clause 3.6, any further changes to the Final Design requested by or on behalf of the Customer will be incorporated at the Company’s sole discretion, subject to such further costs, charges and expenses as the Company may deem to be payable and any amendments to production timelines as the Company may deem to be required.

4. Description

4.1 The Goods and Services shall be supplied by the Company to the Customer in accordance with the Specification.
4.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures or on the Company’s website are issued or published for the sole purpose of giving an approximate idea of the Goods and Services described in them; they shall not form part of the Contract and all rights in them are reserved to the Company or the Company’s licensors, or otherwise to their respective rights owners.
4.3 The Company reserves the right to make any changes in the Specification of the Goods and Services which are required to conform to any applicable safety standard or other requirements or which do not materially affect their quality or performance.
4.4 The Customer shall indemnify and hold the Company harmless against all damages, costs and expenses awarded against or incurred by the Company or agreed to be paid by the Company in settlement or in connection with any claim for infringement of any Intellectual Property Rights, misuse of Confidential Information, defamation or other similar claim directly or indirectly resulting from or arising from the Company’s use of any Input Material.

5. Performance of the contract

5.1 The Company shall use its reasonable efforts to supply the Goods to the Customer within the Lead Time, but time of performance or delivery shall not be of the essence. The Lead Time shall not in any event be deemed to commence until the conditions in clause 3.6 have been satisfied.
5.2 The Company shall be entitled to supply the Goods and Services in instalments in which case each instalment shall be treated as an entirely separate contract and any default or breach by the Company in respect of any
such instalment shall not entitle the Customer to cancel any other instalment or treat the Contract as a whole as repudiated. Signature of the Company’s delivery note by a person reasonably appearing to be the Customer’s representative shall be conclusive proof of delivery.
5.3 The Customer shall inspect the Goods on delivery and if the Goods are damaged on delivery or less than the correct amount of the Goods is delivered then, unless the Customer puts a note to such effect on the delivery note and notifies the Company within 3 days of delivery, confirming the notification in writing by letter to the Company within 7 days of delivery, no claim against the Company may be made in respect of damage to or short delivery of such Goods. Except where such notification is given, the Customer shall be deemed to accept the Goods on delivery notwithstanding any late delivery by the Company.
5.4 The Customer will have no claim in respect of any alleged non-delivery of the Goods unless it gives written notice to the Company which is received by the Company within 7 days of the date of the invoice in respect of those Goods.
5.5 If the Customer fails to take or accept delivery of the Goods or fails to give the Company adequate delivery instructions before any estimated delivery date, then, without prejudice to any other right or remedy available to the Company, the Company may:
5.5.1 store the Goods until actual delivery is made and charge the Customer for the costs (including insurance) of storage; and/or
5.5.2 resell or otherwise dispose of the Goods at the best price readily obtainable and (after deducting all storage and selling expenses) charge the Customer for any shortfall below the Price.
5.6 The Customer shall, at its sole cost:
5.6.1 provide the Company with all information, co-operation and support that may be required to enable the Company to carry out its obligations to the Customer; and
5.6.2 obtain any and all licenses, consents, permits and permissions required to be obtained by the Customer and related directly or indirectly to the subject matter of the Contract.
5.7 Where the Customer fails to comply with any obligation set out in clause 5.6, the Company shall be entitled at its option to:
5.7.1 terminate the Contract; or
5.7.2 continue with the supply of the Goods and Services and charge for such additional costs, charges and expenses as it has incurred in relation to their supply.
5.8 The Customer shall not, without the prior written consent of the Company, at any time from the commencement of the Contract to the expiry of 12 months after the last date of supply of the Goods and/or Services or termination of the Contract, as applicable, solicit or entice away from the Company or employ (or attempt to employ) or otherwise engage or attempt to engage the services of any person who is, or has been, engaged as an employee, consultant or subcontractor of the Company in the provision of the Goods and/or Services.
5.9 Any consent given by the Company in accordance with clause 5.8 shall be subject to the Customer paying to the Company a sum equivalent to 15 % of the then current annual remuneration of the Company’s employee, consultant or subcontractor.

6. Price and payment

6.1 The Price shall be the price confirmed by the Company in its written acknowledgement of the Order pursuant to clause 3.2 (subject to any additional or increased costs, charges and expenses as may be payable pursuant to these Conditions). The Price shall be exclusive of any applicable VAT and the cost of carriage, packaging and insurance if not expressly included in the Price, which the Customer shall be additionally liable to pay to the Company.
6.2 The Company reserves the right to increase the Price to reflect any increase in the cost to the Company which is due to any factor beyond its control, including any foreign exchange fluctuation, alteration of import or export duties or tariffs or any relevant tax, increase in the cost of labour, materials or costs of production, or for any matter attributable to the Customer, including any change in delivery dates, quantities or specifications for the Goods and Services which is requested or confirmed by the Customer or any delay caused by the Customer or the failure of the Customer to give the Company adequate information or instructions.
6.3 The Customer shall make payment to the Company in the following amounts:
6.3.1 30% of the Price shall be payable immediately upon receipt by the Customer of a pro-forma invoice; and
6.3.2 the remaining 70% of the Price shall be payable against shipping documents before shipment is released to the forwarder.
6.4 Time of payment shall be of the essence.
6.5 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
6.6 If at any time the credit standing of the Customer has in the reasonable opinion of the Company been impaired, the Company may suspend the further provision of Goods and Services to the Customer without
incurring any liability until arrangements as to payment or credit have been established which are reasonably satisfactory to the Company.
6.7 If any payment is not received by the Company by its due date or time then without prejudice to its other rights and remedies the Company shall be entitled:
6.7.1 to sue for the entire Price; and/or
6.7.2 to suspend the further provision of Goods and Services to the Customer without incurring any liability; and/or
6.7.3 to terminate the Contract without incurring any liability; and/or
6.7.4 to charge statutory interest (both before and after any judgment) as provided for in the Late Payment of Commercial Debts (Interest) Act 1998 on the outstanding balance; and/or
6.7.5 to require the immediate return to the Company of all Goods agreed to be sold by the Company to the Customer in which the property has not passed to the Customer; and/or
6.7.6 to recover its reasonable costs incurred in recovering payment from the Customer together with its costs and expenses in recovering the Goods.

7. Warranties, liability and indemnity

7.1 The Company warrants that the Goods will correspond in all material respects with the Specification and will be free of defects in material and workmanship on the delivery date, provided that:
7.1.1 the Company shall have no liability in respect of any defects in the Goods arising from any Input Material;
7.1.2 the Company shall have no liability in respect of any defect arising from fair wear and tear, wilful damage or negligence by the Customer or persons handling the Goods, failure to follow the Company’s instructions for the care of the Goods (whether oral or in writing), or misuse, or alteration or repair of the Goods without the Company’s approval;
7.1.3 the Company shall have no liability if the Price has not been paid in full by the due date or time for payment;
7.1.4 any failure to meet the Specification or the existence of a defect in the Goods shall be notified to the Company in writing within 3 days from the time that the Customer discovered or ought to have discovered the non-conformity or defect, as applicable.
7.2 The Company warrants that the Services will be performed in accordance with the Specification and with reasonable skill and care, provided that:
7.2.1 the Company shall have no liability in respect of any deficiency in the Services arising from any Input Material;
7.2.2 the Company shall have no liability if the Price has not been paid in full by the due date or time for payment; and
7.2.3 any failure to meet the Specification or to undertake the Services with reasonable skill and care shall be notified to the Company in writing within 3 days from the time that the Customer discovered or ought to have discovered the non-conformity or deficiency, as applicable.
7.3 In the event of any valid claim under clauses 7.1 or 7.2 above being made by the Customer, the Customer shall afford the Company a reasonable opportunity to inspect the Goods or the results of the Services at a time convenient to the Company and the Company shall be entitled to replace or repair the Goods or re-perform the Services free of charge or, at the Company’s sole discretion, refund to the Customer the Price (or a proportionate part of the Price as appropriate). The Company shall have no further liability to the Customer.
7.4 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979 and section 2 of the Supply of Goods and Services Act 1982) are, to the fullest extent permitted by law, excluded from the Contract.
7.5 The Company does not seek to exclude or limit its liability for fraud or fraudulent misrepresentation or death or personal injury resulting from its own negligence, or for any other matter in respect of which it would be unlawful for the Company to exclude or limit its liability.
7.6 Except pursuant to clause 7.5 above, the Company shall not in any event be liable for:
7.6.1 any loss of profits;
7.6.2 loss or depletion of goodwill;
7.6.3 loss of anticipated savings, business opportunity or data; or
7.6.4 any indirect, special or consequential loss or damages; howsoever arising in connection with or arising out of the provision, performance, functioning or use of the Goods and Services, whether in contract, strict liability, tort (including negligence) and whether the Company knew or had reason to know of the same, and shall not be liable for any other damages except as provided in the Contract.
7.7 Except pursuant to clause 7.5 above, in no event shall the Company’s liability in respect of any of the Goods and/or Services whether such a claim is for breach of contract, strict liability or tort (including negligence) or otherwise, exceed the price paid for those Goods and/or Services.
7.8 Without limiting any other indemnity of the Customer under these Conditions, the Customer shall hold the Company harmless and keep the Company fully and promptly indemnified against all direct, indirect or consequential liabilities (all three of which terms include loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with any claim made by or against the Company in respect of any liability, loss, damage, injury, cost or expense whatsoever, howsoever and to whomsoever occurring, to the extent that such liability, loss, damage, injury, cost or expense arises directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract or breach thereof, subject to the Company confirming such costs, charges and losses to the Customer in writing.

8. Confidential information, intellectual property rights and data protection

8.1 The Customer and the Company agree that in the course of the Company providing Goods and Services to the Customer, the parties may disclose to each other certain Confidential Information. The Customer and the Company agree that each party will maintain the Confidential Information’s confidentiality and not disseminate it to any third party without the disclosing party’s prior written consent, save that this obligation shall not apply to any Confidential Information that either party has a duty (whether legal or otherwise) to communicate or that is in the public domain or is already in the receiving party’s possession through no fault of the receiving party. The Customer and the Company further agree not to use any Confidential Information for any purpose other than the discharge of their respective obligations under the Contract.
8.2 As and between the Company and the Customer, the Customer acknowledges the Company’s sole and exclusive ownership of any Intellectual Property Rights in any Company Material and in any Goods and Services supplied to the Customer pursuant to the Contract and agrees not to contest the Company’s ownership or use of any such Intellectual Property Rights. The Customer shall not acquire any such Intellectual Property Rights or any licence or grant of rights therein beyond those which are necessary for the Customer to enjoy the benefit of the Contract, nor shall the Customer register or attempt or permit to be registered, any such Intellectual Property Rights or any licence or grant of rights therein. The Customer further acknowledges that any and all Intellectual Property Rights developed by the Company in supplying any Goods and Services to the Customer shall become vested and shall vest in the Company absolutely and shall also be subject to the other provisions of this clause 8.2. The Customer shall not copy or reproduce any Company Material nor use any Company Material for any purpose unrelated to the Contract without the Company’s prior written consent and the Customer shall immediately return any and all Company Material to the Company upon request. Without limiting the generality of this clause 8.2, the Company shall be free to use any and all images of the Goods together with any associated trademarks or names for marketing and advertising purposes without the Customer’s consent.
8.3 The Company confirms that it will process personal data lawfully and fairly for the purpose of fulfilling its obligations under the Contract.
8.4 The Company confirms that suitable procedures are in place to safeguard personal data from improper use or disclosure.
8.5 The Customer agrees that it shall and shall procure that its employees, agents and sub-contractors shall, at all times, comply with the provisions of the Data Protection Law and all analogous legislation and warrants to the Company that all personal data held by the Customer and provided to the Company under the Contract is properly and lawfully held and provided by the Customer.
8.6 The Customer consents to the processing of personal data supplied by the Customer and/or held by the Company for the purpose of performing the Company’s duties under the Contract and warrants that it has obtained the necessary consents from all individual data subjects for the processing of personal data in accordance with the performance of the Company’s duties under the Contract.
8.7 The Customer shall indemnify and hold the Company harmless against all actions, claims, proceedings, losses, damages, demands, liabilities, costs (including legal and other professional costs) and expenses arising out of or in connection with any breach of:
8.7.1 clause 8.5 or clause 8.6; and/or
8.7.2 the Data Protection Law; and/or
8.7.3 all analogous legislation.

9. Risk and title

9.1 The Goods are at the risk of the Customer from the time of delivery.
9.2 Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) the Price for the Goods. The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
9.3 Until ownership of the Goods has passed to the Customer, the Customer shall:
9.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
9.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company’s property;
9.3.3 grant the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them;
9.3.4 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
9.3.5 maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Customer shall produce the policy of insurance to the Company.
9.4 The Customer’s right to possession of the Goods shall terminate immediately and the Company may recover the Goods if payment of the Price is not received in full by the due date or time for payment, or if the Company is entitled to terminate the Contract under clauses 10.1.3 – 10.1.7 below.
9.5 The Company shall be entitled to re-sell or otherwise dispose of recovered Goods in any way that the Company in its absolute discretion, thinks fit.

10. Termination

10.1 The Company shall be entitled to terminate the Contract immediately by notice in writing to the Customer if:
10.1.1 the Customer fails to make any payment due under clause 6.3 by the due date or time for payment;
10.1.2 the Customer perpetrates an irremediable breach of the Contract, or perpetrates any remediable breach and fails to remedy it within 30 (thirty) days of receipt of notice of the breach requiring remedy of the same; or
10.1.3 the Customer makes an arrangement with or enters into a compromise with its creditors, becomes the subject of a voluntary arrangement, receivership, administration, liquidation or winding up, is unable to pay its debts or otherwise becomes insolvent or suffers or is the subject of any distraint, execution, event of insolvency or event of bankruptcy or any other similar process or event, whether in the United Kingdom or elsewhere; or
10.1.4 the Customer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it; or
10.1.5 the Customer ceases or threatens to cease to carry on business; or
10.1.6 the Customer encumbers or in any way charges any of the Goods; or
10.1.7 the Company reasonably apprehends that any of the events specified in clauses 10.1.3 to 10.1.6 are about to occur and notifies the Customer accordingly.
10.2 In the event of termination of the Contract by the Company pursuant to clause 10.1 above then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to suspend any further supply of Goods and Services under the Contract and under any other contract between the parties without any liability to the Customer and, if the Goods and/or Services (or any part thereof) have already been supplied but not paid for, the Price shall become immediately due and payable in full notwithstanding any previous agreement or arrangement to the contrary.

11. Force majeure

The Company reserves the right to defer the date of supply of the Goods and Services or to cancel the Contract without incurring any liability if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including Acts of God, governmental actions, local or national lockdowns, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, sabotage, storm, earthquake, subsidence, adverse weather conditions, pestilence, epidemic, pandemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), legal restrictions, non-availability of transport, cessation or interruption of operation of any plant or process, failure of supply of raw materials or components or breakdown of machinery, provided that, if the event in question continues for a continuous period in excess of 180 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.

12. General

12.1 The remedies available to the Company under the Contract shall be without prejudice to any other rights, either at common law or under statute, which it may have against the Customer.
12.2 The failure or delay of the Company to enforce or to exercise, at any time, or for any period of time, any term of or any right, power or privilege arising pursuant to the Contract does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect its right later to enforce or exercise it, nor shall any single or partial exercise of any remedy, right, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege.
12.3 The invalidity or unenforceability of any term of, or any right arising pursuant to the Contract shall not in any way affect the remaining terms or rights which shall be construed as if such invalid or unenforceable term or right did not exist.
12.4 Any notice or written communication required or permitted to be served on or given to either party under the Contract shall be delivered by hand or sent by recorded delivery mail to the other party to such address as has previously been notified to the sending party and shall be deemed to have been given on the day of delivery.
12.5 The Contract is personal to the Customer and the Customer may not assign, transfer, sub- contract or otherwise part with the Contract or any right or obligation under it without the prior written consent of the Company. The Company shall be entitled to assign, transfer, sub-contract or otherwise part with the whole or any part of the Contract or any right or obligation under it to any third party. For the avoidance of doubt, any reference in these Conditions to the Company in relation to the performance of any Services shall be deemed to include the Company’s sub-contractors.
12.6 The Contract contains all the terms agreed by the parties relating to the subject matter of the Contract and supersedes any prior agreements, understandings or arrangements between them, whether oral or in writing, and no representation, undertaking or promise shall be taken to have been given or been implied from anything said or written in negotiations between the parties prior to the Contract except as set out in the Contract.
12.7 No variation or amendment to the Contract shall be effective unless it is in writing and signed by authorised representatives of the parties. The Customer shall be liable to pay the Company any costs, charges or expenses which arise from any such variation or amendment and which are notified to the Customer by the Company.
12.8 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
12.9 The formation, existence, construction, validity and performance and all aspects of the Contract (including any associated non-contractual disputes or claims) are governed by the laws of England and the parties accept the exclusive jurisdiction of the English Courts.