TERMS — Peers Hardy

Terms & Conditions.

PEERS HARDY (UK) LIMITED
CONDITIONS OF SALE

1. Definitions and Interpretation

1.1 In these Conditions the following terms have the following meanings:

“Conditions” the terms and conditions of sale set out in this document;
“Company” Peers Hardy (UK) Limited (Company Number: 01391526) whose registered office is at Precision House, Starley Way, Birmingham International Park, Bickenhill Lane, Solihull, West Midlands, B37 7GN;
“Contract” any agreement between the Company and the Purchaser for the sale and purchase of the Goods incorporating these Conditions;
“Goods” the goods which the Company is to supply to the Purchaser as agreed in the Contract;
“Liability” liability for any and all damages, claims, proceedings, actions, awards, expenses, costs and any other losses and/or liabilities; and
“Purchaser” the business who agrees to purchase the Goods from the Company subject to these Conditions.

2. Basis of Sale

2.1 These Conditions shall be incorporated into and shall apply to all Contracts for the sale of Goods by the Company to the Purchaser. By placing an order with the Company, the Purchaser offers to purchase the Goods on these Conditions.

2.2 Any variations of these Conditions shall only have effect if made in writing and signed by a Director of the Company.

2.3 No terms or conditions endorsed on, delivered with or contained in the Purchaser’s purchase order, confirmation of order, specification or other document shall form part of the Contract and in all circumstances, the terms of these Conditions shall prevail.

2.4 The Contract shall come into effect on the receipt of a written order acceptance from the Company. Unless stated otherwise by the Company, written quotations shall be invitations to treat and are not offers capable of acceptance.

3. Price

3.1 The price for the Goods shall be as specifically agreed between the Company and the Purchaser or, in default of such agreement, as specified in the Company’s price list current at the date of the Company’s order acceptance.

3.2 The price for the Goods is exclusive of any applicable value added tax or other equivalent sales tax, for which the Purchaser shall be additionally liable to pay to the Company.

4. Payment

4.1 Unless otherwise agreed in writing, payment of the full price for the Goods without any with-holding or deduction, together with any value added tax and other applicable charges payable under the Contract, shall be made to the Company not later than 14 days after the date of delivery of the Goods to the Purchaser. Time of payment shall be of the essence. In the event of delivery in instalments, the price of each instalment shall be paid no later than 14 days after the date of delivery of the instalment of the Goods to the Purchaser.

4.2 If monies due to the Company are not paid by the last date for payment pursuant to Condition 4.1, the Company is entitled to charge interest at a rate per annum equal to 2% over the Hong Kong & Shanghai Banking Corp Base Rate from time to time in force for the period from the expiry of the last date for payment to the date of actual payment.

5. Risk and Title

5.1 Title to Goods shall pass to the Purchaser only when the price of the Goods has been paid in full by the Purchaser.

5.2 Risk in the Goods shall pass to the Purchaser on delivery. Delivery shall take place:

5.2.1 if the Purchaser’s principal place of business is in Europe, EXW (Ex works) at Precision House, Starley Way, Birmingham International Park, Bickenhill Lane, Solihull, West Midlands, B37 7GN Incoterms®2010; or

5.2.2 if the Purchaser’s principal place of business outside of Europe, EXW (Ex Works) at 5F, No. 50 Xin He Road, Chang Mu Gu Area, Ping Hu Street, Ping Hu Town, Long Gang District, Shenzen China 518111 Incoterms®2010.

5.3 Until title to the Goods has passed to the Purchaser, the Purchaser shall:

5.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;

5.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Purchaser or any third party in such a way that they remain readily identifiable as the Company’s property;

5.3.3 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 Purchaser’s right to possession has terminated, to recover them;

5.3.4 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and

5.3.5 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 Purchaser shall produce the policy of insurance to the Company.

5.4 The Purchaser may resell the Goods before title has passed to it solely on the following conditions:

5.4.1 any sale shall be effected in the ordinary course of the Purchaser’s business at full market value; and

5.4.2 any such sale shall be a sale of the Company’s property on the Purchaser’s own behalf and the Purchaser shall deal as principal when making such a sale and in such circumstances legal title shall pass to the Purchaser immediately before title passes to the Purchaser’s customer.

5.5 The Purchaser’s right to possession of and to sell the Goods shall terminate immediately if:

5.5.1 the Company is entitled to or does terminate this Contract under Condition 11 and/or terminates any other contract between the parties; or

5.5.2 the Purchaser suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under this Contract or any other contract between the Company and the Purchaser, or is unable to pay any debts as they fall due or the Purchaser ceases to trade; or

5.5.3 the Purchaser encumbers or in any way charges any of the Goods before it has paid for such Goods in full.

5.6 Where the Company is unable to determine whether any Goods are the goods in respect of which the Purchaser’s right to possession has terminated, the Company shall be free to apportion payments made to the Company by the Purchaser against Goods sold to the Purchaser in any order in the Company’s absolute discretion.

5.7 On termination of the Contract, howsoever caused, the Company’s rights contained in this Condition 5 shall remain in full force and effect.

6. Delivery

6.1 Dates for delivery and/or performance are estimates only and are not guaranteed. The Company will use its reasonable endeavours to ensure delivery and/or performance on the dates specified, but time of delivery is not of the essence.

6.2 The Company shall not be liable for any pure economic loss, loss of profits, loss of business, depletion of goodwill, costs, charges or expenses or any indirect or consequential losses caused directly or indirectly by a delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall such delay entitle the Purchaser to terminate or rescind the Contract unless such delay exceeds 60 days.

6.3 Where Goods are to be delivered in instalments, each delivery shall constitute a separate and distinct contract and failure by the Company to deliver, or any claim by the Purchaser in respect of, any instalment shall not entitle the Purchaser to repudiate and/or terminate this Contract as a whole.

6.4 All claims by the Purchaser for:

6.4.1 any damage to the Goods reasonably apparent on an inspection; and/or

6.4.2 for any shortages of the Goods stated in the Contract;
must be notified in writing to the Company within five working days of the Goods arriving at the Purchaser’s place of business.

7. Obligations of the Purchaser

7.1 In order to preserve and build the brand identity of the Goods and ensure that end-customers are able to properly assess the Goods and discuss the unique aspects of the Goods prior to purchase, the Purchaser agrees to comply with certain obligations in respect of the sale of the Goods to its customers. In consideration of the Company agreeing to supply the Goods to the Purchaser, the Purchaser agrees to:

7.1.1 in relation to Goods sold from physical stores only sell the Goods in physical stores in which:

(a) the Goods can be inspected by the customers prior to purchase;

(b) there are trained sales staff who can talk knowledgably about the Goods and the unique aspects of the Goods; and

(i) being displayed in a traditional jewellery display case or stand; and

(ii) being displayed only alongside watches with a similar brand identity;

(iii) displaying the Goods in their displays/cabinets only alongside other brands with a similar brand identity; and

(d) Goods can be returned in the event of a warranty claim; and

7.1.2 in relation to Goods sold online only sell the Goods on a website which:

(a) specialises in the sale of watches and jewellery; and

(b) on which the customer can directly contact trained sales staff who can talk knowledgably about the Goods and the unique aspects of the Goods; and

(i) being displayed only alongside watches with a similar brand identity; and

(ii) being displayed only with promotional and marketing material and photographs provided by the Company; and

(iii) being displayed on their relevant webpage only alongside or in association with other brands approved by the Company; and

(d) allows the customer to return the Goods to a physical address in the event of a warranty claim.

8. Descriptions

Drawings, photographs, specification and other descriptive matter supplied represent generally the goods specified but shall not be taken as forming part of the Contract. The Company has the right to change the design or specification of Goods which are the subject of a contract without prior notice, where such changes do not adversely affect their performance, dates of delivery or prices.

9. Defects

9.1 The Company shall give to the Purchaser, the benefit of any warranty or other written guarantee of the Goods obtained by the Company from the supplier of the Goods (copies of which are available from the Company on request), subject to the terms and conditions and exceptions of such warranty or other written guarantee.

9.2 Subject to Condition 9.3 and Condition 10, if the Purchaser discovers a defect in any Goods, the Company will:

9.2.1 make good free of charge by repair or replacement of the Goods (or the part in question), any defect in Goods arising solely from faulty materials or workmanship; or

9.2.2 at the Company’s sole discretion refund the Purchaser the price of the Goods (or a proportionate part of the price as appropriate), provided that the defect is notified to the Company within 30 days of the delivery of the Goods to the Purchaser.

9.3 The obligations of the Company under this Condition shall be subject to:

9.3.1 the Company being given notice of the defect in accordance with Condition 6.4 or 9.2 as appropriate;

9.3.2 the Goods being returned to the Company at the Purchaser’s expense. If on receipt of the faulty Goods, the Company agrees they are faulty, it will reimburse the Purchaser the Purchaser’s reasonable costs of sending the Goods to the Company;

9.3.3 any repair work undertaken does not extend the warranty period for the Goods;

9.3.4 the Goods being maintained used and operated properly and carefully and in accordance with the Company’s and manufacturer’s recommendations and instructions;

9.3.5 the Company having no Liability for any defect in the Goods caused or contributed to as a result of the Goods being used for display or demonstration purposes, or being handed by customers of the Purchaser;

9.3.6 the Company having no Liability to the Purchaser where the defect has been caused or contributed by the Purchaser to the extent so contributed; and

9.3.7 no repair, replacement or modifications of the Goods being made or attempted without the Company’s express permission.

10. Limitation of Liability

10.1 The Company shall have no Liability to the Purchaser if the price for the Goods has not been paid in full by the due date for payment.

10.2 The Company shall have no Liability for additional damage, loss, liability, claims, costs or expenses caused or contributed to by the Purchaser’s continued use of defective Goods after a defect has become apparent or suspected or should reasonably have become apparent to the Purchaser.

10.3 The Company shall have no Liability to the Purchaser to the extent that the Purchaser is covered by any policy of insurance and the Purchaser shall ensure that the Purchaser’s insurers waive any and all rights of subrogation they may have against the Company.

10.4 The Company shall have no Liability for any matters which are outside its reasonable control.

10.5 The Company shall have no Liability to the Purchaser for any:-

10.5.1 loss of profits and/or damage to goodwill;

10.5.2 economic and/or other similar losses;

10.5.3 special damages and indirect losses;

10.5.4 business interruption, loss of business, contracts, opportunity and/or production; and/or

10.5.5 consequential or indirect losses.

10.6 The Purchaser shall be under a duty to mitigate any loss, damage, costs or expenses that it may suffer (including by maintaining an adequate stock of Goods).

10.7 The Company’s total Liability to the Purchaser in connection with a Contract shall not exceed the total price paid by the Purchaser under the Contract.

10.8 Each of the limitations and/or exclusions in this Contract shall be deemed to be repeated and apply as a separate provision for each of:

10.8.1 Liability for breach of contract and/or under this Contract (including fundamental breach or breach of condition);

10.8.2 Liability in tort (including negligence);

10.8.3 Liability for breach of statutory duty; and

10.8.4 Liability for breach of Common Law;
except Condition 10.7 above which shall apply once only in respect of all the said types of Liability.

10.9 Nothing in this Contract shall exclude or limit the Liability of the Company for death or personal injury due to its negligence or any Liability which is due to the Company’s fraud or any other liability which it is not permitted to exclude or limit as a matter of law.

10.10 All warranties, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.

11. Default

11.1 If the Purchaser:-

11.1.1 fails to make any payment to the Company when due;

11.1.2 breaches the terms of this Contract and, if the breach is capable of remedy, has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied;

11.1.3 persistently breaches any one or more terms of this Contract;

11.1.4 pledges or charges any Goods which remain the property of the Company, or ceases or threatens to cease to carry on business, or proposes to compound with its creditors, applies for an interim order under Section 252 Insolvency Act 1986 or has a Bankruptcy Petition presented against it, enters into voluntary or compulsory liquidation, has a receiver, administrator or administrative receiver appointed over all or any of its assets, or takes or suffers any similar action in any jurisdiction;

11.1.5 appears to the Company due to the Purchaser’s credit rating to be financially inadequate to meet its obligations under the Contract; and/or

11.1.6 appears reasonably to the Company to be about to suffer any of the above events;
then the Company shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in Condition 11.2 below.

11.2 If any of the events set out in Condition 11.1 above occurs in relation to the Purchaser then:

11.2.1 the Company may enter, without prior notice, any premises of the Purchaser (or premises of third parties with their consent) where Goods owned by the Company may be and repossess and dispose of or sell any Goods found which are owned by the Company so as to discharge any sums due to the Company under this Contract or any other agreement with the Purchaser;

11.2.2 the Purchaser automatically is no longer entitled to re-sell, use or part with the possession of any Products owned by the Company until the Purchaser has paid in full all sums due to the Company under this Contract or any other agreement with the Purchaser unless the Company gives its express written agreement to such use and/or disposal of the Goods;

11.2.3 the Company may withhold delivery of any undelivered Goods and stop any Goods in transit;

11.2.4 the Company may cancel, terminate and/or suspend without Liability to the Purchaser this Contract and any other contract with the Purchaser; and

11.2.5 all monies owed by the Purchaser to the Company shall forthwith become due and payable.

12. Force Majeure

The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Purchaser (without liability to the Company) 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, but not limited to, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials or stock, provided that, if the event in question continues for a continuous period in excess of 180 days, the Purchaser shall be entitled to give notice in writing to the Company to terminate the Contract.

13. General

13.1 This Contract together with any written confirmation of order by the Company contains the whole agreement between the parties and it supersedes any prior written or oral agreement between them and is not affected by any other promise, representation, warranty, usage, custom or course of dealing. The parties confirm that they have not entered into this Contract on the basis of any representation that is not expressly incorporated into this Contract. Nothing in this Contract shall exclude liability for any fraudulent statement or act made prior to the date of this Contract.

13.2 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 Purchaser.

13.3 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 the Company’s 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.

13.4 Any reference to “procure” or “ensure” in this Contract shall create a primary obligation and not a secondary obligation or guarantee.

13.5 The Contract is personal to the Purchaser and the Purchaser 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.

13.6 The Company may assign, transfer, sub-contract or otherwise party with this Contract and/or any of its rights or obligations under it.

13.7 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.

13.8 Clause headings are purely for ease of reference and do not form part of or affect the interpretation of the Contract.

13.9 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.

13.10 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 at its address set out above or to such other address which it has been previously notified to the sending party and shall be deemed to have been given on the day of delivery.

13.11 These conditions and the contract for the sale of goods to the Purchaser shall be construed and interpreted in accordance with the laws of England. Each party agrees to submit to the non-exclusive jurisdiction of the courts of England and Wales.