WholeSale Terms and Conditions
GENERAL TERMS & CONDITIONS FOR WHOLESALE SUPPLY
The goods and services of THE FRESH COOKIE LAB (the “Supplier”) are supplied in accordance with the Retailer’s Abridged Wholesale Terms & Conditisigned between the parties (the “Retailer Agreement”) and these General Terms and Conditions (jointly known as the “Agreement”), which apply unless the Supplier enters into a further written agreement with the Retailer which expressly overrides these General Terms and Conditions. Terms used but not otherwise defined in these General Terms and Conditions have the same meaning as in the Retailer’s Agreement.
1.1 Any goods or service being sold, marketed or distributed by the Supplier in their name and style of carrying on business at any given time shall be deemed to be a Product of the Supplier.
1.2 Any deliverable under this Agreement which may include, commodities and services.
- Minimum Order quantity
2.1 This is the stipulated minimum quantity of Product that a retailer can order as prescribed by the Supplier. Minimum order quantity per Product may vary from time to time.
- Prices and Payment
3.1 The prices to be paid by the Retailer to the Supplier for the Products shall be the Supplier's list prices as notified to the Retailer by the Supplier from time to time. The Supplier reserves the right to change prices at any time without notice in accordance with day to day economic reality.
3.2 The Supplier may recommend prices to be charged by the Retailer to the end users for the Products.
3.3 To the extent permitted by applicable legal requirements, the Retailer shall not charge prices for the Products below 15% less than the recommended prices as indicated by the Supplier.
3.4 Without prejudice to clauses 6.1, 6.2 and 6.3 above, and for the avoidance of doubt, the Retailer shall be free to determine the price of the Products and the indication by the Supplier of recommended retail prices shall not restrict the Retailer’s ability to determine its sale price equal to or below the recommended retail prices as indicated by the Supplier.
3.5 The Supplier shall be entitled to invoice the Retailer for each order on or any time before the Dispatch date. Each invoice shall quote the relevant order numbers.
3.6 The Retailer hereby acknowledges that the Supplier may amend the payment terms applicable to any order from time to time at its absolute discretion.
3.7 The Retailer shall pay for any and all expenses, costs and charges incurred by it in the performance of its obligations under the Agreement, unless the Supplier has expressly agreed in advance in writing to pay such expenses, costs and charges.
4.1 Each order shall: (a) be given in writing on the website or, if given orally, shall be confirmed in writing within two days (other than a Saturday, Sunday or public holiday); (b) specify the type and quantity of Products ordered and, where applicable the Products' code numbers; and (c) specify the date on which the order is to be ready for collection (“Delivery Date”). If the Delivery Date is to be specified after the placing of an order, the Retailer shall give the Supplier reasonable advance notice of the relevant information.
4.2 No order shall be deemed to be accepted by the Supplier notifies the Retailer that the order has been accepted and the Supplier acknowledges the receipt of full payment of for the order.
4.3 Each order shall be deemed to be a separate offer by the Retailer on the terms of these General Terms and Conditions, which the Supplier shall be free to accept or decline at its absolute discretion.
4.4 The Supplier shall notify the Retailer of each order it accepts and together with a tentative Dispatch Date.
4.5 The Retailer may at any time within 2 days of placing an order review the quantity of an order upwards by written notice to the Supplier and make the necessary payment to cover the increment. Its liability to the Supplier shall be limited to payment to the Supplier of all costs reasonably incurred by the Supplier in fulfilling the order up until the date of deemed receipt of the amendment or cancellation.
4.6 The Supplier may at any time cancel one or more orders at its absolute discretion.
- Dispatch and Delivery
5.1 In this Agreement, Dispatch date is deemed to be the date the Supplier sends out the order to Courier Company for Delivery to the Retailer’s Delivery Location. Delivery Date is the estimated time of Delivery as prescribed by the Courier Company.
5.2 The Supplier shall communicate an estimated dispatch date of the order to the Retailer. Dispatch dates and delivery times may vary from time to time depending on the quantity of the order placed.
5.3 The Supplier shall communicate the name of the courier company used to deliver the order to the Retailer upon dispatch. The Retailer shall collect each order from courier company being used at the time on the Delivery Date communicated to the by the courier company to the
5.4 Delivery of an order shall be completed when the Supplier dispatches an order to the courier company and the order is deemed to be on its way to the Retailer's disposal at the Delivery Location.
5.5 Delays in the delivery of an order shall not entitle the Retailer to: (a) refuse to take delivery of the order; or (b) claim damages; or (c) terminate the Agreement, subject always to clause 13.2(c) and clause 13.2(j) of these General Terms and Conditions.
5.6 The Supplier shall have no liability for any failure or delay in delivering an order.
5.7 If the Retailer fails to take delivery of an order on the Delivery Date from the courier company, then, except where such failure or delay is caused by the Supplier's failure to comply with its obligations under the Agreement: (a) delivery of the order shall be deemed to have been completed at 6.00pm on the Delivery Date provided by the courier company; and (b) the Courier company may store the goods for any amount of time provided in their company regulations and the Retailer for all related costs and expenses (including demurrage).
5.8 Each order shall be accompanied by a delivery note from the Supplier showing the order number, the date of the order, the type and quantity of Products included in the order, including, where applicable, the code numbers of the Products, and, in the case of an order being delivered by instalments, the outstanding balance of Products remaining to be delivered.
- Title and Risk
6.1 Risk in Products shall pass to the Retailer on completion of delivery of an order in accordance with the Agreement (“Delivery”).
6.2 Title to Products shall not pass to the Retailer until the Supplier has received payment in full in accordance with the Agreement.
7.1 Any advertising, branding or promotional material to be used by the Retailer shall not in any way state or appear to be affiliated with the Supplier, nor bear any semblance to the Supplier past or present advertising, branding and promotional materials.
7.2 The Retailer hereby agrees and confirms that it shall promote and sell the Products using its own business name(s) and using its own distinct brand appearance.
- Retailer’s Undertakings
8.1 The Retailer hereby agrees and undertakes that, at its own expense, it shall: a) promote the sale and use of the Products; b) at all times represent the Products in a professional manner and refrain from any conduct that is or could be detrimental to the reputation or integrity of the Retailer and in extension the Supplier.
8.2. The Retailer agrees to not alter, dilute or re-formulate the Products in any manner except those prescribed by the Supplier.
9.1 The Retailer agrees and undertakes that it shall not: a) advertise the Products as an affiliate, agent or representative of the Supplier ; b) represent itself as an agent of the Supplier for any purpose; c) pledge the Supplier's credit; d) give any condition or warranty on the Supplier's behalf; e) make any representation on the Supplier's behalf; f) commit the Supplier to any contracts; g) otherwise incur any liability for or on behalf of the Supplier.
- Intellectual Property
10.1 In the Agreement, “Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world and Intellectual Property Right means any one of the Intellectual Property Rights.
10.2 The Retailer acknowledges that all Intellectual Property Rights in the Products shall belong to the Supplier and the Retailer shall have no rights in or to the Products other than the right to make the Products available in accordance with the terms of the Agreement.
10.3 Without prejudice to the right of the Retailer or any third party to challenge the validity of any Intellectual Property Rights of the Supplier, the Retailer shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with any Intellectual Property Rights of the Supplier and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect or character.
- Limitation of liability
11.1 To the greatest extent permitted by law, this clause sets out the entire financial liability of the parties (including any liability for the acts or omissions of their respective employees, agents and subcontractors) to each other in respect of: (a) any breach of the Agreement however arising; (b) any use made or resale of the Products by the Retailer, or of any product incorporating any of the Products; and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
11.2 The Supplier shall not under any circumstances whatsoever be liable to the Retailer, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any: loss of profit; loss of goodwill; loss of business; loss of business opportunity; loss of anticipated savings; loss or corruption of data or information; special, indirect or consequential damage; suffered by the Retailer that arises under or in connection with the Agreement.
11.3 Without prejudice to clause 11.2, the Supplier's total liability arising under or in connection with the Agreement, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall in all circumstances be limited to any amount actually paid to the Supplier by the Retailer in the 6 month period prior to the relevant liability arising. Assignment and sub-contracting The Retailer may not assign or transfer or sub-contract any of its rights, benefits or obligations under the Agreement without the prior written consent of the Supplier.
13.1 Each Party undertakes that it shall not at any time during the Agreement, and for a period of five years after termination of the Agreement, disclose to any person any confidential information concerning the business, affairs, Retailers, clients or suppliers of the other Party or of any member of the group of companies to which the other Party belongs (“Confidential Information”), except as permitted by clause 13.2.
13.2 Each Party may disclose the other Party's Confidential Information: (a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the Party's obligations under the 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 13; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 Subject to the provisions of clause 13.2 above, no Party shall use any other Party's Confidential Information for any purpose other than to perform its obligations under the Agreement.
- Obligations on termination
14.1 On termination of the Agreement each Party shall promptly: (a) return to the other Party all property belonging to the other Party that the other Party had supplied to it or a member of its group in connection with the supply and purchase of the Products under the Agreement; (b) return to the other Party all documents and materials (and any copies) containing the other Party’s Confidential Information; (c) erase all the other Party’s Confidential Information from its computer systems (to the extent possible); and (d) on request, certify in writing to the other Party that it has complied with the requirements of this clause.
Survival of obligations
15.1 On termination of the Agreement the following clauses shall survive and continue in full force and effect: (a) Clause 10 (Intellectual Property) (b) Clause 11 (Limitation of liability); (c) Clause 13 (Confidentiality); and (d) Clause 14 (Obligations on termination).
15.2 Notwithstanding clause 15.1 above, on termination of the Agreement, the obligations of the Retailer shall survive and continue in full force and effect until the Retailer has sold or otherwise disposed of its entire inventory of Products (if any), such sale or disposal to be in a manner consistent with the Agreement.
- Force Majeure
16.1 Neither Party (or any person acting on its behalf) shall have any liability or responsibility for failure to fulfil any obligation under the Agreement so long as and to the extent to which the fulfilment of such obligation is prevented, frustrated, hindered or delayed as a consequence of a Force Majeure Event.
16.2 A Party claiming the benefit of this provision shall, as soon as reasonably practicable after the occurrence of a Force Majeure Event: (a) notify the other Party of the nature and extent of such Force Majeure Event; and (b) use all reasonable endeavours to remove any such causes and resume performance under the Agreement as soon as feasible.
16.3 A Force Majeure Event means an event beyond the control of a Party (or any person acting on its behalf), which by its nature could not have been foreseen by such Party (or such person), or, if it could have been foreseen, was unavoidable, and includes, without limitation, acts of God, storms, floods, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) or armed hostilities or other national or international calamity or one or more acts of terrorism or failure of energy sources.
17.1 If any provision of the Agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
17.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
- No partnership or agency
18.1 Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other party.
18.2 The Retailer shall not represent itself as an agent of the Supplier for any purpose, nor pledge the Supplier's credit or give any condition or warranty or make any representation on the Supplier's behalf or commit the Supplier to any contracts. Further, the Retailer shall not without the Supplier's prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of Products which are inconsistent with those stated by the Supplier or otherwise incur any liability on behalf of the Supplier in any circumstances.
No failure or delay by the Supplier to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
In the event that an ambiguity or question of intent or interpretation arises from the Agreement, the Agreement shall be construed as if jointly drafted by the parties hereto and no presumption or burden of proof shall arise favouring or disfavouring any party by virtue of the authorship of any of the provisions of the Agreement.