2. Basis of the Contract
5. Price and Payment
7. Title and Risk
8. Warranties and Liabilities
9. Limitation of Liability
11. Export Terms
1.1. In these Conditions the following terms shall have the following meanings:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Buyer: the person whose order for the Goods (whether made directly or via an agent or representative) is accepted by the Seller.
Conditions: the standard terms and conditions set out in this document as amended from time to time in accordance with clause 2.2.
Contract: the contract between the Seller and the Buyer for the sale and purchase of the Goods pursuant to these Conditions.
Force Majeure Event: an event or circumstance beyond a party’s reasonable control. Goods: the goods (or any part of them) set out in the Order.
Order: the Buyer’s order for the Goods, howsoever presented.
Season: a period of six months from 1 January to 30 June each calendar year (being the “Spring/Summer Season”) or from 1 July to 31 December each calendar year (being the “Autumn/Winter Season”).
Seller: Agent Provocateur Limited a company incorporated under the laws of England and Wales (registered number 10640672) having its registered office at 55 Loudoun Road, London NW8 0DL.
Seller’s Documents: brochures, catalogues, sales literature, quotation, business reports, invoices or other documentation of the Seller.
Total Price: the total price for the Goods, as set out in the Seller’s invoice including importation and custom duties, transport charges, freight, packaging, insurance and relevant additional charges, but excluding value added (or other applicable) tax.
1.2. Any reference to a statute or any provision of a statute is a reference to that such statute or provision as amended or re-enacted, and includes any subordinate legislation made thereunder (as amended or re-enacted).
1.3. 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.
1.4. Any reference to writing or written includes faxes and emails.
2. Basis of the Contract
2.1. These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2. No addition alteration substitution or variation to these Conditions shall bind the Seller unless they are agreed in writing and signed by a person authorised to sign on the Seller’s behalf.
2.3. The Buyer waives any right it may otherwise have to rely on any advice, recommendation, representation or other information published or communicated in the Seller’s Documents, or otherwise given verbally (by the Seller, its employees or agents), that (in either case) is inconsistent with these Conditions. Accordingly, the Seller shall have no liability in respect of any reliance by the Buyer on any such advice, recommendation, representation or other information.
2.4. All samples, drawings, descriptive matter or advertising of the Seller and any descriptions or illustrations in the Seller’s Documents are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract.
2.5. A quotation for the Goods given by the Seller does not constitute an offer, and shall only be valid for a period of 30 days from its date of issue.
2.6. The Seller reserves the right (without incurring any liability to the Buyer) to correct any typographical, clerical or other manifest error or omission in any of the Seller’s Documents.
3.1. The Order constitutes an offer by the Buyer to purchase the Goods pursuant to these Conditions. The Order shall only be deemed to be accepted by the Seller when the Seller issues its confirmation of order form in writing, at which point the Contract shall come into existence. The Buyer is responsible for ensuring the accuracy of the terms of the Order (including any applicable specification) submitted by the Buyer.
3.2. The Buyer acknowledges and agrees that the:
3.2.1. acceptance by the Seller of any one Order submitted by the Buyer, does not provide any guarantee that the Seller will accept any other Order submitted by the Buyer; and
3.2.2. Seller is entitled to accept or reject any Order in its sole and absolute discretion (provided that if it rejects any Order it shall (as soon as reasonably practicable) refund any sums paid by the Buyer in respect of that Order for Goods which have not been received).
3.3. The Buyer shall not be entitled to cancel or amend an Order which has been accepted by the Seller, after the expiry of the period of 14 days from the date of that Order. During such 14-day period, the Buyer shall only be entitled to cancel or amend that Order with the Seller’s prior written agreement, which agreement shall be given or withheld at the Seller’s sole and absolute discretion, and if given, shall include terms that the Buyer shall pay to the Seller a sum equivalent to 25% of the Total Price as compensation for the net costs which the Seller will incur as a result (even if the Goods have not been delivered to the Buyer).
3.4. If the Buyer fails to make any payment due to the Seller within 120 days of the due date, the Seller, without prejudice to its other rights or remedies, shall be entitled (without liability to the Buyer) to cancel any forward orders placed by the Buyer and accepted by the Seller and the Buyer shall pay to the Seller a sum equivalent to 25% of the accepted Order value as compensation for the net costs which the Seller will incur as a result (even if the Goods have not been delivered to the Buyer).
4.1. The quantity, quality and description of and any specification for the Goods at the time of delivery shall be as set out in the Seller’s confirmation of order form. The Seller reserves the right to amend any specification for the Goods if required by any applicable statutory or regulatory requirements.
4.2. Notwithstanding clause 4.1, the Seller shall not be liable for any failure to deliver to the Buyer the Goods as quantified in the Seller’s confirmation of order form to the extent that it is unable to do so due to any Force Majeure Event.
5. Price and Payment
5.1. The price of the Goods shall be as set out in the Order, or if no price is quoted, the price set out in the Seller’s published price list in force at the date of delivery.
5.2. The Seller shall submit an invoice to the Buyer for the Total Price on or at any time after delivery of the Goods.
5.3. The Buyer shall pay the invoice in full and in cleared funds in accordance with the payment terms stated on the Seller’s invoice.
5.4. Payment of all sums due shall be made by direct debit, standing order, cheque or bank transfer to the bank account nominated in writing by the Seller. Time for payment shall be of the essence.
5.5. If the Seller has agreed with the Buyer in writing that payment for the Goods shall be made by instalments and the Buyer fails to pay a single instalment by the due date for payment, then the unpaid balance for the Goods shall immediately become payable in full without further notice to the Buyer, and the Seller shall not be required to deliver the balance of the Goods until it receives in full and in cleared funds, the Total Price of all Goods.
5.6. If the Buyer fails to make any payment due to the Seller under the Contract by the due date for payment, then the Buyer shall pay interest on the amount unpaid at the rate of 4% above Barclays Bank plc’s 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 Buyer shall pay the interest together with the overdue amount.
5.7. The Total Price is exclusive of any applicable value added or other tax, which the Buyer shall be additionally liable to pay to the Seller at the prevailing rate.
5.8. If the Seller requests the payment by the Buyer of a deposit in respect of any Order (“Deposit”), the Buyer shall:
5.8.1. pay the Deposit in full and in cleared funds in accordance with clause 5.4, within 14 days from the date of the Order; and
5.8.2. pay the remaining balance (being the Total Price less the Deposit) (“Balance”) in full and in cleared funds in accordance with clause 5.4 and prior to the date of shipment of the Goods or as otherwise advised by the Seller to the Buyer in writing.
5.9. If the Buyer fails to make payment of the Deposit in accordance with clause 5.8.1, the Seller shall, notwithstanding the request for the Deposit and without further notice to the Buyer, treat the Order as unconfirmed, and no Contract shall come into existence.
5.10. If the Buyer fails to make payment of the Balance in accordance with clause 5.8.2, the Seller shall without further notice to the Buyer, treat the Order as having been cancelled by the Buyer and shall be entitled to retain the Deposit as compensation for the net costs which the Seller will incur as a result (even if the Goods have not been delivered to the Buyer).
5.11. The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except as required by law). The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Seller to the Buyer.
6.1. The Seller shall deliver the Goods to the Buyer to the address in the United Kingdom or the Republic of Ireland specified by the Buyer, and if more than one then to the last address notified in writing to the Seller (Delivery Location).
6.2. Delivery is completed on the completion of the unloading of the Goods at the Delivery Location.
6.3. Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods that is caused by any Force Majeure Event or the Buyer’s failure to provide it with adequate delivery instructions (or any other instructions that are relevant to the supply of the Goods). Time for delivery shall not be of the essence.
6.4. Notwithstanding any delay in delivery of the Goods, the Buyer shall accept delivery and pay for the Goods in full in accordance with these Conditions.
6.5. The Goods may be delivered by the Seller in advance of any quoted delivery date upon giving prior notice to the Buyer.
6.6. The Seller may deliver the Goods in instalments, which shall be invoiced and paid for separately. Any delay or defect in one instalment in accordance with these Conditions shall not entitle the Buyer to cancel any other instalment.
6.7. If the Seller fails to deliver the whole or any part of the Goods, its liability shall be limited to refunding to the Buyer the relevant percentage of the Total Price of the Goods for which the Seller has received payment from the Buyer but which remain undelivered. The Seller shall have no liability for any failure to deliver the whole or any part of the Goods to the extent that such failure is caused by a Force Majeure Event or the Buyer’s failure to provide it with adequate delivery instructions (or any other instructions that are relevant to the supply of the Goods).
6.8. If the Buyer fails to take delivery of some or all of the Goods within three Business Days of the Seller notifying the Buyer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or the Seller’s failure to comply with the Contract:
6.8.1. delivery of the Goods shall be deemed to have been completed at 9am on the third Business Day after the day on which the Seller notified the Buyer that the Goods were ready; and
6.8.2. the Seller shall be entitled to:
18.104.22.168. store the Goods until actual delivery is completed and charge the Buyer for all related costs and expenses (including insurance) or
22.214.171.124. resell the Goods and (after deducting all reasonable storage and selling expenses) account to the Buyer for any excess over the Total Price or charge the Buyer for any shortfall below the Total Price.
6.9. If the Seller delivers up to and including 5% more or less than the quantity of Goods ordered the Buyer may not reject them, but on receipt of notice from the Buyer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.
7. Title and Risk
7.1. Title to the Goods shall not pass to the Buyer until the earlier of:
7.1.1. the Seller has received payment in full (in cash or cleared funds) for the Goods and any other goods that the Seller has supplied to the Buyer, in which case title to the Goods shall pass at the time of payment in cash or cleared funds of all such sums; and
7.1.2. the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in clause 7.3.
7.2. Until title to the Goods has passed to the Buyer, the Buyer shall:
7.2.1. keep the Goods separately from any other goods held by the Buyer so that they remain readily identifiable as the Seller’s property;
7.2.2. not remove, deface, or obscure any identifying mark or packaging on or relating to the Goods; and
7.2.3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery
7.3. Subject to clause 7.4, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Seller receives payment for the Goods. However, if the Buyer resells the Goods before that time:
7.3.1. it does so as principal and not as the Seller’s agent; and
7.3.2. title to the Goods shall pass from the Seller to the Buyer immediately before the time at which resale by the Buyer occurs
7.4. If before title to the Goods passes to the Buyer, the Buyer becomes subject to any of the events listed in clause 10.1.2 to 10.1.4, then without limiting any other right or remedy the Seller may have, the Buyer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately.
7.5. Until such time as title to the Goods passes to the Buyer, then without limiting any other right or remedy the Seller may have, the Seller shall be entitled at any time to require the Buyer to deliver up all Goods in its possession that have not been resold, and if the Buyer fails to do so promptly, enter upon any premises of the Buyer and/or third party where the Goods are stored in order to repossess the Goods.
7.6. The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) immediately become due and payable.
7.7. The Seller shall be entitled to maintain an action for the price of any Goods despite the fact that title in them has not passed to the Buyer.
7.8. Each sub-clause 7.1 to 7.7 above shall be construed and receive effect as a separate clause and accordingly if any provision or term thereof shall be or be declared illegal, invalid or unenforceable for any reason whatsoever such term or provision shall be deemed to be deleted and the remaining provisions and terms shall remain in full force and effect.
7.9. Risk in the Goods shall pass to the Buyer on completion of delivery.
8. Warranties and Liabilities
8.1. The Seller warrants that at the time of delivery the Goods will correspond to the description in the Contract in all material respects.
8.2. Any claim by the Buyer which is based on any defect in the quality or condition of the Goods which was not apparent on reasonable inspection must be notified to the Seller within a reasonable time after discovery of the defect and in any event before the 31st March each year for the previous delivery of the Autumn/Winter collection and before the 30th September each year for the previous delivery of the Spring/Summer collection. The Buyer shall not be entitled to reject the Goods after these dates. An authorisation code must be issued before Goods are returned to the Seller and packing must be clearly marked with the issued code. The Seller shall be entitled to reject the return of any Goods without any such authorisation code.
8.3. In respect of all goods manufactured and supplied to the Seller by third parties the Seller will pass on to the Buyer (in so far as possible) the benefit of any warranty given to the Seller by such third parties and will (on request) supply to the Buyer details of the terms and conditions of any such warranty and the Buyer shall be solely responsible to the entire exclusion of the Seller for complying with such terms and conditions.
8.4. Subject to clause 8.5, where any valid claim in respect of any of the Goods is notified in writing to the Seller in accordance with these Conditions, the Seller shall, at its option, replace the defective Goods free of charge or, refund to the Buyer the price of the defective Goods in full.
8.5. The Seller shall not be liable for the Goods’ failure to comply with the warranty set out in clause 8.1 in any of the following events:
8.5.1. the Buyer makes any further use of such Goods after giving notice in accordance with clause 8.2;
8.5.2. the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, use and maintenance of the Goods (or if there are none, good trade practice regarding the same);
8.5.3. the defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal storage or working conditions; or
8.5.4. the Buyer alters or repairs such Goods without the Seller’s written consent; or
8.5.5. the Goods differ from their description or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
8.6. Except as provided in this clause 8, the Seller shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 8.1.
8.7. 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.
8.8. These Conditions shall apply to any replacement Goods supplied by the Seller.
9. Limitation of Liability
9.1. Nothing in these Conditions shall limit or exclude the Seller’s liability for:
9.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.1.2. fraud or fraudulent misrepresentation;
9.1.3. breach of the terms implied by s12 of the Sale of Goods Act 1979; or
9.1.4. any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.
9.2. Subject to clause 9.1:
9.2.1. the Seller shall under no circumstances whatsoever be liable to the Buyer, 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
9.2.2. the Seller’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed:
126.96.36.199. a sum equal to the total Order value of Orders paid for by the Buyer, in respect of the Season in which the losses arose; and
188.8.131.52. £500,000 (five hundred thousand pounds), whichever is the lower.
9.3. The Seller shall not be in breach of this Contract nor liable to the Buyer for delay in performing or any failure to perform, any of the Seller’s obligations under this Contract if such delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, strike, lockout, other industrial action or trade disputes (whether involving the Seller’s employees, agents, representatives or those of a third party) shall be regarded as causes beyond the Seller’s reasonable control.
10.1. Without limiting its other rights or remedies, the Seller may terminate this Contract with immediate effect by giving written notice to the Buyer if:
10.1.1. the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
10.1.2. the Buyer takes any step or action in connection with its entering any voluntary arrangement with its creditors, administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of a bona fide amalgamation or reconstruction); or an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
10.1.3. the Buyer suspends, threatens to suspend, ceases, or threatens to cease, to carry on all or a substantial part of its business; or
10.1.4. the Buyer’s financial position deteriorates to such an extent that in the Seller’s reasonable opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.2. Without limiting its other rights or remedies, the Seller may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Seller if the Buyer becomes subject to any of the events listed in clause 10.1.1 to 10.1.4 or the Seller reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
10.3. Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.
10.4. On termination of the Contract for any reason, the Buyer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest.
10.5. Termination of the Contract shall not affect any of the parties’ rights or remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
11. Export Terms
11.1. In these Conditions ‘Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, the term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
11.2. Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 11 shall apply notwithstanding any other provisions of these Conditions.
11.3. The Buyer shall be responsible for complying with any legislation or regulation governing the importation of the Goods into the country of destination and for the payment of any duties thereon. In the event that the Buyer is in breach of this term, the Seller may either require specific performance of the Contract or repudiate the Contract and claim damages.
11.4. Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered Ex Works EXW – Incoterms® 2020 Rules, with the Buyer to collect the Goods from the warehouse address specified by the Seller.
11.5. Where the Goods are supplied to a Buyer which, in the Seller’s reasonable opinion, is located in a country with a high risk of trading, the Seller shall be entitled to request the payment by the Buyer of a deposit of a sum equal to 30% of the value of the Order, and the Buyer shall pay such deposit in accordance with clause 5.4 within 14 days from the date of the Order. The Buyer shall make payment of the balance in accordance with clause 5.4 and with the payment terms stated on the Seller’s invoice. If the Buyer fails to make payment of the balance as aforesaid, the Seller shall be entitled to treat the Order as having been cancelled by the Buyer and to retain such deposit as compensation for the net costs which the Seller will incur as a result (even if the Goods have not been delivered to the Buyer).
12.1. Assignment and other dealings
12.1.1. The Buyer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights or obligations under the Contract without the prior written consent of the Seller.
12.1.2. The Seller may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
12.2.1. Each party undertakes that it shall not at any time 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 12.2.2. 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.
12.2.2. Each party may disclose the other party’s confidential information:
184.108.40.206. 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 Contract. 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 12.2; and
220.127.116.11. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.2.3. 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 Contract.
12.3. Compliance with Laws. In performing its obligations under this Contract, the Buyer shall comply with:
12.3.1. all applicable laws, statutes, regulations and codes from time to time in force;
12.3.2. without prejudice to the generality of clause 12.3.1, all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including to the Bribery Act 2010; and
12.3.3. the Seller’s mandatory policies from time to time in force.
12.4. Data Protection.
The Seller will collect and process information relating to the employees, agents and representatives of the Buyer in accordance with the Seller’s privacy notice which is published on its website. The Buyer warrants that it will notify its employees, agents and representatives of the Seller’s privacy notice forthwith.
Any notice required or permitted to be given by either party to the other under this Contract shall be in writing addressed to that other party at its address given in the Contract.
No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any previous or subsequent breach of the same or any other provision.
If any provision of this Contract is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of this Contract and the remainder of the provision in question shall not be affected thereby.
12.8. 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.
12.9. Governing Law and Jurisdiction
12.9.1. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with its subject matter or formation, shall be governed by and construed in accordance with the laws of England and Wales.
12.9.2. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.